1776

of the 3rd couplet the poet gives Babur the

appellation of qalandar, which means a perfect

devotee, indifferent to all worldly pleasures. In the

second hemistich he gives as the reason for his being

so, that Babur became and was known all the world

over as a qalandar, because having become Emperor

of India and having thus reach the summit of

worldly success, he had nothing to wish for on this

earth.

The inscription is incomplete and the above is the

plain interpretation which can be given to the

couplets that are to hand. Attempts may be made to

reed further meaning into them but the language

would not warrant it.”

1651. The text and translation of these above two authorities

are evidently distinct and different. Beveridge's claim that the

inscriptions were well existing on Baber's mosque in terms as to

be understood about the existence of inscriptions and not for the

text since admittedly she had not seen the inscriptions and its

text but has collected the same as a secondary evidence.

1652. Then next comes the Civil Judge, Faizabad who has

mentioned the text of the two inscriptions in his judgment dated

30.03.1946 in R.S. No.29 of 1945. He has also discussed the

same as under:

"Lastly there are the two Inscription in the mosque which

have been reproduced in my inspection notes. These are

also referred to in the Gazettes and according to the date

in the inscription on the pulpit it was built in 923 Hijri,

while according to other it was in 935 H. corresponding

with 1528 A.D. These inscriptions were the sheet-anchor

1777

of the plff’s case but I am of the opinion that they are

inconclusive.

The 1st inscription contains three couplets in Persian and

when translated runs as follows:

“By the order of Shah Babar, whose justice went up to the

skies (i.e. was well known), Amir (Noble) Mir Baqi, of

lofty grandeour, built this resting place of angels in 923

Hijri.”

The 2nd inscription is more elaborate and contains usual

high flown language on eulogy of Babar & describe Mir

Baqi of Isphahan as his adviser and the builder of the

mosque. This inscription no doubt s the plff’s case,

because it does not say that it was by the order of Babar

shah & it only refers to the reign of Babar but the 1st

couplet in the 1st inscription near the pulpit, clearly

supports the theory that Babar had ordered the building of

the as stated in the Gazettes and the settlement report."

1653. By this time, damage of inscription in 1934 and its

restoration is admitted to the parties. Whether the restoration

was accurate and if so on what basis is not known.

1654. Then next come Dr. Z.A. Desai's edited work in

"Epigraphia Indica Arabic & Persian Supplement 1964-65"

which gives another story with much difference. Paras 17, 18

and 19 of written argument:

17. Dr. Z.A. Desai informs that Fuhrer’s reading does

not appear to be free from mistakes. But he does not

specify the mistakes committed by Fuhrer in his reading

of the texts and translations thereof. From the scrutiny of

Dr Desai’s translation it appears that Dr. Desai in 4th line

has added “and” between ‘Mir’ and ‘Khan’ and “Baqi”

1778

after ‘Khan’. So he has converted ‘Mir Khan’ into ‘Mir

Khan Baqi’. And in the 3rd line he has added “of God”

after ‘this lasting house’ to make it a mosque. He has

neither given any rational explanation for his said

conversion of ‘Mir Khan’ into ‘Mir Baqi’ nor He has

exhibited as to how the Fuhrer’s translation is different

from the original text.

18. Dr. Z.A. Desai In his detailed discussion on all

inscriptions of Babur’s regime writes an introduction that

a rough draft of an article of his predecessor Maulivi M.

Asuraf Hussain who retired in 1953 was found amongst

sundry papers in his office with a note that it might be

published after revision by his successor. Consequently,

he claims, that he has published these inscriptions with

translation after extensive revision and editing, but

nowhere has he mentioned that which portions of the

reading of these inscriptions are his own revision and

editing and on what ground these revisions have been

made. About inscriptions at Ayodhya he writes that there

are three inscriptions in the Babari Mosque out of which

the two were completely destroyed by the Hindu rioters in

1934 A.D. However, he managed to secure an ink-

stampage of one of them from Sayyid Badru’l - Hasan of

Fyzabad. He writes that the present inscription restored by

the Muslims Community “is also slightly different

from the original owing perhaps to the incompetence of

restorers in deciphering it properly.” When Dr. Desai

himself admits that the restored inscription is slightly

different from the original, then his claim that the restored

inscription fixed on Baburi mosque in or after 1934 is the

1779

dextrously rebuilt of the original one alleged to be fixed

on since the days of Babur becomes meaningless and un-

trustworthy. In fact, none of the Inscriptions was fixed on

the Disputed Structure which has all along been sacred

place of the Hindus known as Sri Ramajanmasthan

Temple.

19. Dr. Desai informs that he has based his translation

on the inscription of Fuhrer, although he says that Fuhrer

must have been misinformed to affirm that; “few

corrections of the second and the whole third line

completely defaced”. Even if it is supposed that some

words in the 2nd line and the whole third line are defaced,

there is not much impact in the meaning of the text of the

inscription. But here we do find that Dr. Desai has

extensively changed the meaning of the translated

passage. It is quite different from what Fuhrer had

translated. Fuhrer had written that it is in ten lines, above

the entrance door of the Masjid. He has made its

translation in ten separate lines. Dr. Desai has

considerably changed the meaning of the text without

pinpointing how Fuhrer’s translation was wrong. Since

beginning and the end of the text are the same and the

inscription is said to be the same and there is no major

variance in Fuhrer’s English translation from the Persian

text, Dr. Desai’s translation appears to be arbitrary. He has

changed the date of the inscription 930 H. (1523 A.D.) to

935A.H. Without assigning any reason. In Dr. Desai’s

translation the name of Mir Baqi the second Asfaq appears

where as in the original Persian text Mir Baqi’s name does

not appear at all. Then Babar is called a Qalandar in this

1780

inscription which is not found in Fuhrer’s translation.

After 4th line Dr. Desai does not follow the line system

and at the end he mentions Fathu’llah Muhammad Ghori

as the humble writer of this inscription. His name figures

in the Fuhrer’s translation too. He goes on expanding how

Babar was called Qalandar but he does not explain how

the changes have taken place in the inscription which was

not in the text read by Fuhrer.

1655. Sri P.N.Mishra has also requested this Court to take

judicial notice of the fact that almost in all the inscriptions,

which have been recovered by ASI said to be of the period of

Babar mentions his name with much honour and deference. This

he has demonstrated from various inscriptions referred to in

"Epigraphia Indica Arabic & Persian Supplement 1964-65"

(Supra). He has summarized this part of argument in para 20 of

written argument as under:

"In the above mentioned Inscriptions the Emperor’s name

Zahiru’d-Din Muhammad Babur Badshah Ghazi which

has been recorded almost in all other available Inscription

of his period, is missing from which it appears that the

forgers of later days were not familiar with the correct

name of the said Emperor.

In the Inscription, dated A.H. 933 i.e. 1526-27 A.D. found

on the wall of a well from Fatehpur Sikri being Plate No.

XV(a) in its 1st line his name has been recorded as

follows:

“Zahiru’d-Din Muhammad Babur Badshah Ghazi”

(Epigraphia Indica Arabic & Persian

Supplement 1964 and 1965 at page-51)

In the Inscription of A.H. 934 i.e. 1527-28 A.D. found on

1781

a mosque from Panipat being Plate No. XVI(b) in its 1st

line his name has been recorded as follows:

“Zahiru’d-Din Muhammad Babur Badshah Ghazi”

(Ibid.p. 55)

In the Inscription dated A.H. 934 i.e. 1527-28 A.D. found

on a mosque from Rohatak being Plate No. XVI(a) in its

2nd line his name has been recorded as follows:

“Zahiru’d-Din Muhammad Babur Badshah Ghazi”

(Ibid.p. 56-7)

In the Inscription dated A.H. 934 i.e. 1528 A.D. found on

a mosque from Rohtak being Plate No. XVII(a) in its 1st

line his name has been recorded as follows:

“His Majesty Babur Badshah Ghazi”

(Ibid.p. 57)

In the Inscription of A.H. 935 i.e. 1528-29 A.D. found on

a mosque from Palam(Delhi) being Plate No. XVIII(a) in

its 1st and 2nd lines his name has been recorded as

follows:

“Zahiru’d-Din Muhammad Babur Badshah Ghazi”

(Ibid.p. 62)

In the Inscription of A.H. 935 i.e. 1528-29 A.D. found on

a mosque from Pilakhna being Plate No. XVIII(c) in its

3rd line his name has been recorded as follows:

“Zahiru’d-Din Muhammad Babur Ghazi”

(Ibid.p. 64)

In the Inscription dated A.H. 936 i.e. 1529 A.D. found on

a mosque from Maham being Plate No. XIX(a) in its 1st

and 2nd lines his name has been recorded as follows:

“Zahiru’d-Din Muhammad Badshah Ghazi”

(Ibid.p. 65)

1782

1656. Regarding transportation of inscription from one place

to another and affixing the same to raise the claim with respect

to building on the basis of certain facts, which actually did not

exist, he pointed out that this kind of practice has been noticed

on various occasions. He sought to fortify it by referring to

certain incidents mentioned in para 21 and 22 of his written

argument:

21. It is not uncommon for ruffians to fix old

Inscriptions on newly built and / or converted mosques.

‘Epigraphia Indica Arabic & Persian Supplement 1964

and 1965’ at its pages 55 and 56 records that two

Inscriptions dated 1934 fixed on two mosques at Rohtak

did not belong to those mosques but have been fixed

thereon. relevant extracts from said book read as follows:

“Among the historical buildings, two mosques, viz.,

Masjid-i-Khurd in the Fort2 and Rajputon-ki-Masjid, a

new mosque in the city area, bear inscriptions of the

time of Babar. The one on the Masjid-i-Khurd consists

of three lines inscribed on a tablet measuring 53 by

23cm. Which is fixed over the central archway

outside3. The slab is badly damaged and considerable

portion of the text has peeled off. It is, therefore, not

possible to decipher it completely, but this much is

certain that it refers to the construction of a mosque in

the reign of ahiru’d-Din Muhammad Babur by one

Qadi Hammad. If the Tughluq inscription occurring on

the outer archway is in situ, this epigraph may not

belong to this mosque.” (Ibid.p.56)

“The other epigraph of Babur in Rohtak is from the

Rajputon-ki-Masjid. Fixed over its central arch, the

1783

tablet, measuring 1.1 m. By 21 cm., does not belong to

the mosque, but it was rather intended as the tombstone

of Masnad-i-‘Ali Firuz Khan. It is inscribed with two

lines of Persian which are slightly affected by the

weathering of the stone. The text records A.H. 934

(1528 A.D.) as the date of the construction of the tomb

of Masnad-i-Ali Firuz Khan, son of Masnad-i-Ali

Ahmed Khan and grandson of Masnad- i-Ali Jamal

Khan and refers itself to the reign of Babur. The style of

writing is ordinary Naskh. I have read it as follows:-

TEXT

Plate XVII(a)

...............................

TRANSALATION

(1) Completed was in the reign of His Majesty Babur

Badshah Ghazi, may Allah perpetuate his kingdom and

sovereignity, this noble edifice, (viz.) the tomb of His

Excellency Masnad-i-Ali3 Firuz Khan, son of Masnad-

i-Ali Ahmad Khan, son of Masnad-i-Ali Jamal Khan,

the deceased, all of them, on the 10th of the month of

Rabiu’l-Akhar, year (A.H.) four and thirty and nine

hundred (10th Rabi’II A.H. 934 = 3rd January 1528

A.D.). (Ibid. P. 57)

22. In 'Epigraphia Indica Arabic & Persian

Supplement 1964 and 1965’ at its pages 19 and 20 S.A.

Rahim reports that at Fathabad near Chanderi in Guna

district of Madhya Pradesh, stands the partially ruined

palace known as Kushk-Mahal and Inscrption fixed

thereon are not dated back to its construction but have

been affixed thereon from time to time either by the

1784

visitors or by the Governors thereof. Relevant extracts

from his said reprt read as follows:

“It would not be, however, wholly correct to say that the

Kushk-Mahal does not bear any inscription. There are

about a score of places on the walls enclosing the stair-

cases, referred to above, which bear short inscriptions.

The rubbings of some of these were found in the

bundles of old estampages which werer transferred to

our office, from the Office of the Government

Epigraphist for India, Ootacamund, South India, who in

his turn seems to have received them quite some time

back from the Archaeological Department of the

erstwhile Gwalior state. I prepared fresh rubbings of

these records when I toured some places in Madhya

Pradesh, including Chanderi, in November 1962. Of

these, some are mere repetitions of the same text and as

such have been excluded from this purview. The

remaining four inscriptions are edited here for the first

time.

These inscriptions raise an important question, as to

whether they are contemporary with the building or not.

They do not appear to be so, because they are not

inscribed on tablets set up on the walls, nor are they

found incised on prominent places on the monument. A

building of such magnificence would have had, if at all

it was so planned, an inscription of proportionate

prominence. This does not rule out the possibility,

however, of the existence of an epigraph on the

monument, for it is possible that it had one and may

have disappeared since. Moreover, the texts of the

1785

inscriptions under study are also vague on this point, for

they do not make any explicit reference to the palace-

building or its construction. In view of these facts, it

appears more likely that these records are either visitors’

etchings or some sort of mementos which the governors,

the palace-guards or some other officials might have

desired to leave on the stone.

Fortunately, one of these four records is dated, and since

the same penmanship is employed in the other three

records, they can also be safely taken as having been

inscribed at about the same time or at short intervals.

Their language is Persian and style of writing cursive

Naskh. The wear and tear of time has affected the stone,

resulting into partial obliteration of some of the letters,

particularly in the first inscription.

The contents of these four epigraphs classify them into

two groups: one, of the first inscription, and the other of

the remaining three. The first refers itself to the

governorship(amal) of Khan-i-A’zam Sharaf Khan

Sultani and the superintendence (shahnagi) of one

person whose name is not very legible; it seems to be

Raja, (son of) Shams, (son of) Fath. The name of the

writer which is also not clear, appears to be Shiv Sing(?)

Gulhar. This inscription is dated 1489-90. The three

records of the other group refer, between themselves, to

the governorship of Malik Mallu Sultani and

superintendence of Sarkhail Shariqi Mulki and quote

Gulhar Jit(?) Dev, as the scribe. They are undated and

hence, it is difficult to state positively if they are earlier

than the above dated inscription or not.” (Ibid. P.19-20)

1786

1657. We may place on record that on this aspect of the

matter the learned counsels appearing on behalf of the Muslim

parties in their rejoinder arguments could not give any

substantial reply. They said that the matter involves historical

facts. The inscriptions, their text, have been noticed in various

history books. They have no other material to support the plea

that the building in dispute was constructed by Babar in 1528

AD or at his command by his commander or his agent Mir Baki.

They also submit that since this historical event has not been

doubted for the last more than one and a half century, this Court

may not be justified in recording a finding disturbing the

historically admitted and believed fact as the Court is not expert

in the matter of history and therefore, there should not be any

venture on the part of the Court on this aspect.

1658. The later part of the argument that for the last more

than one and a half century, the documents, which are available

to us, does not show that the Historians doubted about the

building in dispute was constructed during the reign of Babar.

But simultaneously this is also proved that all have proceeded

mechanically and without properly scrutinizing the texts of the

inscriptions, as reported from time to time. The things have been

taken as granted. It is also true that the incident of destruction of

the temple and construction of a mosque at the disputed place

was first noticed by Tieffenthaler in the second half of 18th

Century. By that time Aurungzebe's rule was much nearer than

Babar's reign. The local belief in respect to recent event

normally is more reliable then much older one. This belief was

so strong that it continued thereafter for the last 50 years and

around 1810 AD, when Dr. Buchanan visited Ayodhya he also

found the same. It is he, who for the fist time sought to

1787

controvert the local belief by bringing into picture Babar as the

person responsible for the demolition of the temple and

construction of mosque at that site. Subsequent writers were

mostly petty employees of East India Company i.e. Robert

Montgommery Martin or the British Government i.e.

H.H.Wilson etc.

1659. During the reign of British Government, names of

Aurangzebe and Babar, both were taken for Ayodhya, but tried

to be a justified in respect to different buildings. The Indian

Historians basically have followed what was written as per the

observations of Buchanan. Nobody made any detailed

investigation whatsoever. At least none tried to find out the

actual events which took place and the correct historical facts.

1660. Normally, this Court would be justified in following

the opinion of Expert Historians particularly when it covers a

sufficiently long time, but when directly a historical issue is

raised before it and this Court, as a matter of necessity, has no

option but to find out the correct historical events to the extent

of accuracy as much as possible, we cannot proceed blindly to

follow what has been written by earlier Historians ignoring all

other aspects, some of which we have already discussed. In fact,

it is for this reason that the biographical details of some of the

alleged history writers, we have mentioned in the early part of

this judgment. Had there been two views possible we would not

have hesitated in following the view which has prevailed for

such a long time but where we find, considering all the relevant

material, that the view, which has prevailed for such a long time

apparently unbelievable and unsubstantiable, followed by the

concerned authors and Historians without a minute scientific

investigation, we cannot shut our eyes to such glaring errors and

1788

record a finding for which we ourselves are not satisfied at all.

1661. In fact the doubts created otherwise are so strong and

duly fortified with relevant material that we have no hesitation

in observing that they surpass the required test to become cogent

evidence to prove a fact otherwise.

1662. Before concluding we may also deal with one aspect

which has been raised though with caution from both the sites,

i.e., the legal status and evidentiary value of the White Paper

published by Government of India as well as various gazetteers.

1663. First we come to the White Paper issued in February,

1993 by the Government of India with the title "White Paper on

Ayodhya".

1664. In Chapter I "Overview" paras 1.1 and 1.2 read as

under:

“1.1. Ayodhya situated in the north of India is a township

in District Faizabad of Uttar Pradesh . It has long been a

place of holy pilgrimage because of its mention in the epic

Ramayana as the place of birth of Shri Ram. The structure

commonly known as Ram Janma Bhoomi-Babri Masjid was

erected as a mosque by one Mir Baqi in Ayodhya in 1528

AD. It is claimed by some sections that it was built at the

site believed to be the birth-spot of Shri Ram where a

temple had stood earlier. This resulted in a long-standing

dispute.”

“1.2. The controversy entered a new phase with the

placing of idols in the disputed structure in December,

1949. The premises were attached under section 145 of the

Code of Criminal Procedure. Civil suits were filed shortly

thereafter. Interim orders in these civil suits restrained the

parties from removing the idols or interfering with their

1789

worship. In effect, therefore, from December, 1949 till

December 6, 1992 the structure had not been used as a

mosque.”

1665. In Chapter II "Background" para 2.13 and 2.15 read as

under:

“2.13. As has been mentioned above, Hindu structures of

worship already existed in the outer courtyard of the RJB-

BM structure. On the night of 22nd/23rd December, 1949,

however, Hindu idols were placed under the central dome

of the main structure. Worship of these idols was started on

a big scale from the next morning. As this was likely to

disturb the public peace, the civil administration attached

the premises under section 145 of the Code of Criminal

Procedure. This was the starting point of a whole chain of

events which ultimately led to the demolition of the

structure. The main events of this chain have been

summarised in Appendix-1.”

“2.15. The Hindu idols thus continued inside the disputed

structure since 1949. Worship of these idols by Hindus also

continued without interruption since 1949 and the structure

was not used by the Muslims for offering prayers since

then. The controversy remained at a low ebb till 1986 when

the District Court of Faizabad ordered opening of the lock

placed on a grill leading to the sanctum-sanctorum of the

shrine. An organisation called the Babri Masjid Action

Committee (BMAC), seeking restoration of the disputed

shrine to the Muslims came into being and launched a

protest movement. The Hindu organisations, on the other

hand, stepped up their activities to mobilise public opinion

for the construction of a Ram temple at the disputed site.”

1790

1666. Similarly Chapter I para 1.14 refers to the excavations

conducted by Prof. B.B. Lal at Ayodhya and Chapter II paras

2.6, 2.7, 2.8, 2.9 and 2.10 refers to certain more facts as under:

“1.14. The other controversy related to the

excavations conducted by Prof. B.B. Lal at Ayodhya. His

discovery of some pillar bases close to the disputed

structure was cited by VHP to support its case. The

authenticity of this finding was, however, disputed by

AIBMAC which alleged that its historians had been denied

the opportunity to examine the original record relating to

this excavation. This was settled by making available

material relating to Prof. Lal’s excavations to the experts

of both sides.”

“2.6. There was a minor battle in this part of Ayodhya (Kot

Ram Chandra) in 1855 in which a large number of

casualties had taken place. A 3-man inquiry report of this

incident is available on the records of the East India

Company (and a copy is in the National Archives).”

“2.7. At some stage during the history of the RJB-BM

structure a portion of its compound was occupied by Hindu

structures of worship, viz Ram Chabutra and Kaushalya

Rasoi. The presence of these structures is marked in court

documents relating to a suit filed by Mahant Raghuvar

Dass in 1885. These structures were in existence till

December 6, 1992. There are indications that these

structures were considerably older but the evidence on this

point is not conclusive. Some Survey records of 1807-14

have come to notice in which the disputed site has been

marked as ‘Yanmasthan’, i.e. Janmashtan.”

“2.8. It is also established that the dispute between Hindus

1791

and Muslims over this structure led to communal riots in

1934 in which the structure suffered some damage which

was later repaired.”

“2.9. The structure and its appurtenant land were notified

as a Sunni Muslim Wakf in 1944. The validity of this

notification has been called into question in court

proceedings.”

“2.10. The Ram Janma Bhoomi-Babri Masjid structure

contained some architectural elements, particularly

fourteen black stone pillars that were said to be part of a

non-Islamic religious structure of 11th -12th century AD.

The VHP argued that this constituted evidence that the

disputed structure was built after destruction of a temple.

The AIBMAC, however, argued that there was nothing to

suggest that all these architectural elements belonged to a

single structure standing at this very site. These could have

belonged to different structures in other areas.”

1667. Sri P.R. Ganpathi Ayer and Sri K.N. Bhat, Senior

Advocates sought to rely on the above report to show the

structures already existing in the disputed area and some other

historical events.

1668. Similarly, the factum of construction of the disputed

building in 1528 AD mentioned in para 1.1 of the said paper is

referred by the other side. The question is, what is the legal

status of the document, how far the contents thereof can be

relied on by the parties in a Court of Law in respect to certain

facts which is are to be adjudicated and whether a historical or

otherwise facts mentioned in a White Paper published by

Government of India is binding and conclusive so far as that fact

relating to occurrence or non-occurrence of an event etc. is

1792

concerned.

1669. No provision has been shows to us which cover a

White Paper issued by the Government.

1670. The word "White Paper" has been defined in “Words

and Phrases” Permanent Edition, Vol. 45, published by St.

Paul, Minn. West Publishing Co., at page 127 as under:

"White Paper: Ballots upon paper tinged with blue,

which has ruled lines not placed there as marks to

distinguish the ballots, are upon "white paper," within the

meaning of Act 1849, p. 74, § 15, providing that no ballot

shall be received or counted unless the same is written or

printed upon while paper without any marks thereon

intended to distinguish one ballot from another. People v.

Kilduff, 15 III. 492, 501, 60 Am. Dec. 769."

1671. In "DK Illustrated Oxford Dictionary" published by

Oxford University Press, at page 952:

"White Paper- Government report giving

information or proposals on an issue."

1672. In “The New Lexicon Webster's Dictionary of the

English Language” (1987), published by Lexicon Publications,

Inc. at page 1122:

"White paper-an informative government report

issued on a matter which has received official

investigation."

1673. In “The Layman's Dictionary of English Law" by

Gavin McFarlane” (1984), published by Waterlow Publishers

Limited at page 314:

"White Paper-A governmental publication giving

details of some topic which is to be laid before

Parliament."

1793

1674. On the one hand it is a public document issued by the

Government of India and, therefore, no doubt it is true, that, it

can be looked into by a Court of Law. Even if the parties have

not referred to it, judicial cognizance of such a document can be

taken. A Full Bench of Punjab High Court in Sukhdev Singh

Vs. Union Territory, Chandigarh, AIR 1987 Punjab and

Haryana 5 has said:

"15. What the White Paper describes can judicially

be taken note of on which there can be no two opinions...."

1675. However, there is no authority to show that the facts as

given in White Paper are to be treated as correct in a Court of

Law where those facts or related facts are disputed in a pending

adjudication. No provision has been shown whereunder

anything contained in a White Paper published by a Government

may be taken to be a proved fact. We are not apprised of any

authority whatsoever showing the legal status of a White Paper

except that it is a public document under Section 74 of the

Evidence Act. About the value of the facts or factual statements

contained therein, to our mind, the things would depend on the

nature of the facts stated in a White Paper and the context.

Something concerning the governmental activities, if are

mentioned in a White Paper which has been issued by that very

Government, a presumption may lie that the facts relating to that

body must have been correctly mentioned therein. This

presumption also, however, is rebuttable and it is always open to

anyone to contradict such a statement of fact and lead evidence

to disprove it. Then there may be facts relating to history or

historical events, the geographical position of the territories etc.

as also the condition of the subject/people etc. The well known

historical facts which are duly supported with other history

1794

books may be taken to be correct. Similarly in respect to the

geographical position of the State the concerned government is

more competent to tell about its accuracy than any individual.

However, the facts historical or otherwise in respect to

individual or group of individuals, and/or about the property

matters of the subject, we have no manner of doubt that in such

cases, at the best, the Court will presume that the government

has mentioned those facts based on the record available to it but

in case of dispute such statement would have no relevance and

shall not be used for the advantage/disadvantage to any party.

The dispute has to be considered by the appropriate judicial

authority in the light of the evidence led before it. The facts

mentioned in White Paper, depending upon the nature, at the

best, may be used as a corroborating evidence but not otherwise.

1676. Then comes the gazetteers in respect whereto some of

the authorities we have already discussed and noticed above. At

this stage suffice it to mention that the facts contained in a

gazetteer do not represent the conclusive status and correctness

of those facts but again they have to be looked into and decide

by a Court of Law based on the evidence available before it. The

gazetteer may be considered as a relevant evidence but the

historical, cultural and other facts, which may have some

reflection on the rights, privileges etc. of individual or group of

individuals, there the matter has to be considered by a Court of

Law in the light of the evidence made available to it and if

corroborated by other reliable evidence, the facts of history etc.

contained in a gazetteer may be looked into. Gazetteers,

published under the authority of the Government, we have no

hesitation in treating the same to be a "public document" under

Section 74 of the Evidence Act but then the contents thereof

1795

cannot be taken on their face value and cannot be relied to prove

a particular aspect of the matter unless it is corroborated.

1677. Sri Ayer has relied on Section 87 of the Evidence Act

to contend that the facts stated in a gazetteer may be presumed

to be correct unless proved otherwise since the gazetteers are

relevant for the purpose of Section 13 of the Evidence Act

having noticed the faith of the people and the historical facts

therein. To the extent that the gazetteer may be treated to be

relevant and one of the piece of evidence, we may not have any

objection but to suggest that the facts stated in a gazetteer may

presume to be correct unless proved otherwise by applying

Section 87 of the Evidence Act, we find it difficult to accept.

Where the rights of the individuals or group of individuals

pertaining to property dispute are under challenge, the facts

mentioned in a gazetteer may be considered to be a relevant

piece of evidence but not beyond that.

1678. In the light of the above we do not find that either the

Government of India's White Paper published in 1993 or various

gazetteers, merely for mentioning one or the other facts, can be

taken to be correct on its face value unless corroborated with

cogent evidence.

1679. In the above facts and circumstance, it is difficult to

record a finding that the building in dispute was constructed in

1528 AD by or at the command of Babar since no reliable

material is available for coming to the said conclusion. On the

contrary the preponderance of probability shows that the

building in dispute was constructed some later point of time and

the inscriptions thereon was fixed further later but exact period

of the two is difficult to ascertain.

1680. The onus to prove lies upon the party who has pleaded

1796

these facts. We have no hesitation in saying that these parties

have miserably failed to discharge this burden.

1681. In the absence of any concrete material to show the

exact period and the reign of the concerned Mughal emperor or

anyone else during which the above construction took place, we

are refraining from recording any positive finding on this aspect

except that the building in dispute, to our mind, may have been

constructed much later than the reign of Emperor Babar and the

inscriptions were fixed further thereafter and that is why there

have occurred certain discrepancies about the name of the

person concerned as also the period. The possibility of change,

alteration or manipulation in the inscriptions cannot be ruled

out.

1682. It is a matter of further probe by Historians and others

to find out other details after making an honest and independent

inquiry into the matter. The three issues, therefore, are answered

as under:

(A) Issue no.6 (Suit-1) and Issue No.5 (Suit-3) are

answered in negative. The defendants have failed to

prove that the property in dispute was constructed by

Shanshah/Emperor Babar in 1528 AD. Accordingly, the

question as to whether Babar constructed the property in

dispute as a 'mosque' does not arise and needs no answer.

(B) Issue No.1(a) (Suit-4) is answered in negative. The

plaintiffs have failed to prove that the building in dispute

was built by Babar. Similarly defendant no.13 has also

failed to prove that the same was built by Mir Baqi. The

further question as to when it was built and by whom

cannot be replied with certainty since neither there is any

pleadings nor any evidence has been led nor any material

1797

has been placed before us to arrive at a concrete finding

on this aspect. However, applying the principle of

informed guess, we are of the view that the building in

dispute may have been constructed, probably, between

1659 to 1707 AD i.e. during the regime of Aurangzeb.

(G) Issues relating to Deities, their status, rights etc.:

1683. In this category comes issues no. 12 and 21 (Suit-4);

and, 1, 2, 3(a), 6 and 21 (Suit-5).

1684. Issues no. 12 (Suit-4) and 3(a) (Suit-5) involves

common facts and consideration. Similarly issues no. 1 and 21

(Suit-5) and issues no. 2 and 6 (Suit-5) are common:

“Issue No. 1 (Suit-5):-

Whether the plaintiffs 1 and 2 are juridical persons?

Issue No. 21 (Suit-5):-

Whether the idols in question cannot be treated as

Deities as alleged in paragraphs 1,11,12,21,22, 27 and 41 of

the written statement of defendant no.4 and in paragraph 1

of the written statement of defendant no.5?

Issue No. 2 (Suit-5):-

Whether the suit in the name of Deities described in

the plaint as plaintiffs 1 and 2 is not maintainable through

plaintiff no.3 as next friend?

Issue No. 6 (Suit-5):-

Is the plaintiff no.3 not entitled to represent the

plaintiffs 1 and 2 as their next friend and is the suit not

competent on this account?

Issue No. 21 (Suit-4):-

Whether the suit is bad for non-joinder of alleged

Deities?

Issue No. 12 (Suit-4):-

1798

Whether idols and objects of worship were placed

inside the building in the night intervening 22nd and 23rd

December 1949 as alleged in paragraph 11 of the plaint

or they have been in existence there since before? In either

case, effect?

Issue No. 3 (Suit-5):-

(a) Whether the idol in question was installed under

the central dome of the disputed building (since

demolished) in the early hours of December 23, 1949 as

alleged by the plaintiff in paragraph 27 of the plaint as

clarified in their statement under Order 10 Rule 2 C.P.C."

1685. Pleadings in this respect are in para 11 of the plaint

(Suit-4) and para 26 of the written statement dated 24th

December, 1989 of defendant no. 13/1 (Suit-4); paras 1, 20 and

27 of the plaint (Suit-5) and paras 1, 11, 12, 21, 22, 27 and 41 of

the written statement dated 26/29.08.1989 of defendant no. 4

(Suit-5) which read as under:

"11. That the Muslims have been in peaceful possession of

the aforesaid mosque and used to recite prayer in it, till

23.12.1949 when a large crowd of Hindus, with the

mischievous intention of destroying, damaging or defiling

the said mosque and thereby insulting the Muslim religion

and the religious feelings of the Muslims, entered the

mosque and desecrated the mosque by placing idols inside

the mosque. The conduct of Hindus amounted to an offence

punishable under sections 147, 295 and 448 of the Indian

Penal Code." (Plaint, Suit-4)

Para 26 of Written statement of defendant no. 13/1

(Suit-4):

26. That it is manifestly established by public records

1799

and relevant books of authority that the premises in

dispute is the place where, BHAGWAN SRI RAMA

Manifested HIMSELF in human form as an incarnation of

BHAGWAN VISHNU, according to the tradition and faith

of the Hindus. Again according to the Hindu faith, GANGA

originates from the nail of the tee of BHAGWAN VISHNU,

and cleanses and purifies whatever is washed by or dipped

into its waters. And BHAGWAN VISHNU having

Manifested himself in the human form of Maryada

Purushottam Sri Ramchandra Ji Maharaj at Sri Rama

Janma Bhumi, those who touch the Earth or the footprints

of BHAGWAN SRI RAMA symbolised by the CHARANS at

that place, are cleansed of their sins and purified. The

Earth at Sri Rama Janma Bhumi could not have acted

differently towards the Muslims who went there. They

were also cleansed and purified of the evil in them by the

touch of BHAGWAN SRI RAMA’S footprints, which like

the waters of the GANGA purify all without any

discrimination. The place, like the waters of the GANGA,

remains unsullied, and has been an object of worship, with

a juridical personality of its own as a Deity, distinct from

the juridical personality of the presiding Deity of

BHAGWAN SRI RAMA installed in the Temple thereat,

and has existed since ever even before the construction of

the first temple thereat and installation of the Idol therein.

Indeed, it is the VIDINE SPIRIT which is worshipped. An

Idol is not indispensable. There are Hindu Temples

without any Idol. The ASTHAN SRI RAMA JANMA

BHUMI has existed immovable through the ages, and

has ever been a juridical person. The actual and

1800

continuous performance of Puja at Sri Rama Janma Bhumi

was not essential for the continued existence or Presence

of the Deities at that place. They have continued to remain

Present, and shall continue to remain Present, so long as

the place lasts, which, being land, is indestructible, for any

one to come and invoke them by prayer. The Deities are

Immortal, being the Divine Spirit or the ATMAN, and may

take different shapes and forms as Idols or other symbols

of worship according to the faith and aspiration of their

devotees.

Paras 1, 20 and 27 of plaint (Suit-5):

“1. That the Plaintiffs Nos. 1 and 2, namely, Bhagwan Sri

Rama Virajman at Sri Rama Janma Bhumi, Ayodhya, also

called Sri Rama Lala Virajman, and the Asthan Sri Rama

Janma Bhumi, Ayodhya, with the other Idols and places of

worship situate thereat, are juridical persons with

Bhagwan Sri Rama as the presiding Deity of the place.

The Plaintiffs No. 3 is a Vaishnava Hindu, and seeks to

represent the Deity and the Asthan as a next friend.”

"20. That the Place itself, or the Asthan SRI RAMA

JANMA BHUMI, as it has come to be known, has been an

object of worship as a Deity by the devotees of Bhagwan

Sri Rama, as IT personifies the spirit of the Divine

worshipped in the form of SRI Rama LALA or Lord Rama

the child. The Asthan was thus Deified and has had a

juridical personality of its own even before the

construction of a Temple building or the installation of the

Idol of Bhagwan Sri Rama thereat.”

27. That after independence from the British Rule, the

Vairagis and the Sadhus and the Hindu public, dug up and

1801

levelled whatever graves had been left in the area

surrounding Sri Rama Janma Bhumi Asthan and purified

the place by Aknand Patha and Japa by thousand and

thousands of persons all over the area. Ultimately, on the

night between the 22nd 23rd December, 1949, the Idol of

Bhagwan Sri Rama was installed with due ceremony

under the central dome of the building also.

Paras 1, 11, 12, 21, 22, 27 and 41 of Written statement of

defendant no. 4 (Suit-5):

"1. That the contents of para 1 of the plaint are incorrect

and hence denied as stated. Neither the plaintiffs no. 1 and

2 are the juridical persons and nor there is any Presiding

Deity of Sri Ram Chandraji at the place in dispute and nor

the plaintiff no. 3 has any locus standi or right to represent

the co-called and alleged deity and Asthan as next friend. It

is further submitted that the plaintiffs no. 1 and 2 are not at

all legal personalities (and as such they have no right to

file the instant suit). As a matter of fact there has never

been any installation of deity within the premises of the

disputed place of worship known as Babri Masjid and the

idol in question was stealthily and surreptitiously kept

inside the mosque in the night of 22nd/23rd December, 1949

by some mischief-mongers against whom an F.I.R. had also

been lodged at the Police Station Ayodhya on 23rd

December, 1949.

11. That the contents of para 11 of the plaint are denied

as stated and in reply thereto it is submitted that the

plaintiffs no. 1 and 2 cannot be treated as deities and

also there arises no question of their Sewa and Pooja. Rest

of the contents of the para under reply may be verified from

1802

the record.

12. That the contents of para 12 of the plaint are also

denied as stated and in reply thereto it is submitted that

there arises no question of Sewa and Pooja of the said

alleged deities as no such deities exist in the building in

question and the idols kept therein could not be treated as

deities. It is further submitted that the restricted Pooja as

carried on on 16th January, 1950 could not be treated as

Sewa and Pooja of the alleged deity. It is also incorrect to

say that there has ever been any likelihood of the suits

being decided in such a manner that any closer Darshan of

the idols could be possible.

21. That the contents of para 21 of the plaint are also

denied as stated and in reply thereto it is submitted that the

mythological concept of incarnation etc. is not at all

relevant for the purposes of the instant case. (However, the

averments of the para under reply are not correct and

consistent with Hindu Law and the same being a matter of

legal nature it will be dealt at the appropriate stage.) It is,

however, relevant to mention here that neither there has

been any installation of any deity within the premises in

dispute and nor the ritual of Pranpratishtha in respect of

any idol surreptitiously and stealthily kept inside the

mosque in question was ever performed or observed; as

such there arises no question of divine spirit having been

created or manifested in the idol forcibly kept in the

mosque in question in the night of 22nd-23rd December,

1949 about which an F.I.R. was lodged at the Police

Station Ayodhya in the morning of 23.12.1949 by a Hindu

Officer of the Police Station himself who had mentioned in

1803

the said F.I.R. that some mischievous element had kept the

said idol in the preceding night in a stealthy and

surreptitious manner by sheer use of force and on the basis

of the said F.I.R. a Criminal case had also been registered

against those persons who had kept the said idol and

subsequently proceedings under section 145 Cr. Proc.

Code had been drawn by the Magistrate and as a result of

the communal tension arising and developing on account of

the aforesaid incident of keeping the idol in the mosque, the

said building had been attached on 29.12.1949 and

Suprudgar/Receiver for the care and custody of the said

building had also been appointed who had drawn up a

Scheme of Management and the same was submitted on

5.1.1950.

22. That the contents of para 22 of the plaint are also

incorrect and hence denied as stated and in reply thereto it

is submitted that the spirit of Sri Ramj Chandraji as the

divine child cannot be said to reside at any place or in any

idol kept inside the said mosque and as such no idol or

place of the said mosque can be said to be deity. It is

further submitted that there is no comparison of Kedranath

or Vishnupad temple of Gaya with the Babri Masjid. It is

also relevant to mention here that there is no Charan or

Sita Rasoee within the premises of Babri Masjid and the

place known as Sita Rasoee is situated outside the

premises of the said mosque. It is also incorrect to say

that Pooja in any form was ever performed inside the

mosque in question at any time prior to 23.12.1949.

27.That the contents of para 27 of the plaint are also

incorrect and hence denied as stated. The graves existing

1804

near the Babri Masjid were dug up and levelled mainly

after 1949 and not just after Independence and in the night

of 22nd-23rd December, 1949 some Bairagees had forcibly

and illegally entered into the mosque and had kept the

idol below the middle dome of the mosque about which

an F.I.R. was lodged at the Police Station Ayodhya in the

morning of 23rd December, 1949 and some of the culprits

were even named in the FIR. It is absolutely incorrect to

say that the idol of Bhagwan Sri Ram Chandraji was

installed with due ceremony in the Central dome of the

building in the 'aforesaid' night. It is also incorrect to say

that any purification of the alleged Asthan was done by

Akhand Ramyan and Jap by thousands of persons all over

the area.

41. That the instant suit is not at all maintainable and the

plaintiffs no. 1 and 2 are neither deities and nor they can

be treated as juristic persons and the plaintiff no. 3 cannot

claim himself to be the next friend of Bhagwan Sri Ram. As

such none of the plaintiffs have any right to file the instant

Suit."

1686. The defendant no. 5 (Suit-5) also in para 1 of his

written statement has said:

"1. That the contents of para 1 of plaint are denied.

Neither the plaintiff no. 1 nor plaintiff no. 2 are the

deities within the meaning of Hindu Law nor they are

juristic person to file the suit. Remaining contents of para

are also denied. Kindly see additional pleas."

1687. We may mention at this stage that para 11 of the plaint

(Suit-4) has also been denied by the defendants no. 1 and 2 in

para 11 of their written statement dated 12.03.1962 and

1805

thereafter in the additional pleas in paras 25, 28 and 29 they

have pleaded that Hindu Pooja is going on in the said temple

since 1934, i.e., for about last 28 years and Muslims have

never offered any prayer since 1934 therein. It is also said that

the plaintiffs (Suit-4) have falsely described the temple as

Babari mosque. Same thing has been repeated in the written

statement dated 25.01.1963 filed on behalf of defendant no. 2 in

para 25.

1688. On behalf of Nirmohi Akhara defendants no. 3 and 4

also written statement has been filed wherein they have disputed

the very assertion of construction of any building, i.e., Babari

mosque by Emperor Babar 460 years ago as alleged in para 1

and it is also said that Babar did not make any conquest or

occupation of any territory in India at that time. Similarly, any

damage to the building in 1934 has been denied and

consequently its rebuilding and reconstruction also denied. We

may notice at this stage, in particular, para 13(C) of the written

statement dated 22/24.08.1962 of defendants no. 3 and 4 which

says:

"The said Temple Ram Chabutra has a history of Judicial

scanning since 1885 A.D. and it existence and possession

over temple Ram Chabutra was ever since in possession of

Nirmohi Akhara and no other but Hindus allowed to enter

and worship there and put offering in form of money,

sweets, fruits, flowers etc......"

1689. Similarly in para 38 of their additional written

statement dated 28/29.01.1963 the defendants no. 3 and 4 have

categorically denied that Emperor Babar ever built a mosque as

alleged by the plaintiffs or that the Muslims were ever in

possession of the building in question. Therefore, the case of the

1806

defendants no. 3 and 4 has all through been that the temple of

Lord Rama at the disputed site exist from time immemorial and

thereat neither any construction was made by Babar in 1528 AD

nor any damage etc. caused in 1934 in the said temple and

accordingly they also deny the allegation of placement of any

idol in the disputed building on 22/23.12.1949. Para 11 of the

plaint (Suit-4) has been denied alleging it to be false and

concocted and in para 12 of the written statement it is said that

no such incident ever took place. The report, if any, lodged by

the constable is mischievous and in connivance of the plaintiffs.

1690. The arguments advanced by Sri Jilani, and as adopted

by counsel appearing for other Muslim parties are, that, neither

a place can be said to be a 'Deity' nor a Juristic person, nor every

'idol' will attain the status of a 'Deity' and thereby become a

juristic person, unless it is installed by Shastric procedure i.e.,

by observing process of “Pran Pratishtha” (vivification). Neither

idols in question placed at the disputed site are 'Deity' nor the

place itself comes within the said notion recognised in law. The

suit filed by plaintiffs no. 1 and 2 (Suit-5) is not maintainable.

Non impleadment of Deity, i.e., idol and place makes Suit-4

untenable. Further submission is, the plaintiff 3 (Suit-5) is

neither competent nor otherwise can represent plaintiffs 1 and 2

(Suit-5), he is not a proper person who can represent the

plaintiffs 1 and 2, and even otherwise as a next friend.

Therefore, Suit-5 is liable to be dismissed. Besides, plaintiffs 1

and 2 not being juridical person, Suit 5 is not maintainable in

law.

1691. Sri Siddique also argued that Pran Pratishtha is

necessary to make an idol 'deity' as held in Jogendra Nath

Naskar Vs. Commissioner of Income Tax, Calcutta AIR 1969

1807

SC 1089. He said that neither in 1949 nor thereafter, at any

point of time, Pran Pratishtha of the idols, placed in the inner

courtyard of the disputed structure, took place and, therefore, no

right of worship of the idols placed therein is vested in or

acquired by any Hindu. He said that plaintiff no. 2 is only a

fictional deity and not a real deity. After construction of

building more than 500 years ago, the deity cannot said to have

continued since then till date.

1692. With respect to Suit-3, contentions of all the learned

counsels appearing on behalf of various Hindu parties, [except

Sri R.L. Verma who is counsel for plaintiff (Suit-3)] is that the

Deities being juristic personalities having not been impleaded as

defendants in Suit-3, though they are necessary parties, hence in

their absence suit cannot proceed.

1693. Responding to the objections of Sri Jilani, Sri Siddiqui

and Sri Irfan Ahmad, Advocates, the other side, represented

through Sri Ravi Shankar Prasad, Sri P.R. Ganesh Ayer and Sri

K.N. Bhatt, Senior Advocates, Sri P.N. Mishra, Sri M.M.

Pandey and other Advocates submit that in Hindu religious

scriptures the concept of 'Deity' extremely vary. It includes a

place or object, i.e. natural things like river, tree, stone,

mountain, mound or even a part of earth connected with divine

activities. Sri Ravi Shankar Prasad submitted that this aspect of

the matter is also crucial and relevant to adjudicate issues no. 14

(Suit-4), 22 and 24 (Suit-5).

1694. Sri P.N.Mishra, Advocate, besides his oral submission,

has also submitted written argument. In respect to the juridical

personality of plaintiffs no.1 and 2 (Suit-5) and consecration

etc., he has said:

"A. According to Shastric (Scriptural) injunctions Sri

1808

Ramajanmasthan Sthandil, a Svayambhu Linga (Symbol)

brought into existence and established by the Lord of

Universe Sri Vishnu Himself. As such inspite of being

decayed, or damaged, or destroyed it shall forever remain

sacred place of Worship as it does not need purification or

consecration or change. Pratistha is required only in respect

of manmade Images/Idols/Symbols of Deities that can be

done by chanting single Mantra XXXI.1 or II.13 of the Holy

Divine Sri Yajurved (Vagasaneyee Samhita also known as

"Sri Shukla Yajurved"). A deity needs to be worshipped by

providing all things which are required for leading a healthy

and excellent life.

B. Svayambhu i.e. Self-built or Self existent or Self-

revealed Lingas (symbols) of Devatas (Gods) or the Lingas

(Symbols) established by Gods, or by those versed in the

highest religious truths, or by Asuras, or by sages, or by

remote ancestors, or by those versed in the tantras need not

to be removed though decayed or even broken. Only

decayed or broken Pratisthita Images/Idols require to be

replaced with new one. In respect of renewal of the images,

"Treatise on Hindu Law" by Golapchandra Sarkar,

(Sastri) reproduces the Shastric injunction (Scriptural law)

as follows:

“Raghunanda’s Deva-Pratistha-Tantram, last paragraph

reads as follows:

“8. Now (it is stated) the prescribed mode of Renewal of

Decayed Images. Bhagwan says – ‘I shall tell you briefly

the holy ordinance for renewing Decayed Images * * *’

“Whatever is the material and whatever size of the image

of Hari (or the God, the protector) that is to be renewed; of

1809

the same material and of the same size, and image is to be

caused to be made; of the same size of the same form (and

of the same material), should be (the new image) placed

there; either on the second or on the third day (the image

of) Hari should be established; if, (it be) established after

that, even in the prescribed mode, there would be blame or

censure or sin; in this very mode the linga or phallic

symbol and the like (image) should be thrown away; (and)

another should be established, of the same size (&c.) as

already described, - Haya-Sirsha”.

“9. God said, -

‘I shall speak of the renewal in the prescribed mode of

lingas or phallic symbols decayed and the like &c * * *.

(Allinga) established by Asuras, or by sages or by remote

ancestors or by those versed in the tantras should not be

removed even in the prescribed form, though decayed or

even broken.’

(Agnipuranam Chapter 103 Poona Edition of 1900 AD.

p.143)

[There is a different reading of a part of this sloke noted in

the foot-note of the Poona Edition of this Puran as one of

the Anandashram series of sacred books: according to

which instead of – “ or by remote ancestors or by those

versed in the tantras” –

the following should be substituted, namely:

“Or by Gods or by those versed in the highest religious

truths.”]

“10. Now Renewal of Decayed (images is considered);

that is to be performed when a linga and the like are burnt

or broken or removed (from its proper place). But this is

1810

not to be performed with respect but a linga or the like

which is established by a Siddha or one who has become

successful in the highest religious practice, or which is

anadi i.e. of which the commencement is not known, or

which has no commencement. But their Mahabhisheka or

the ceremony of great anointment should be performed:-

this is said by "Tri- Vikrama” – Nirnaya – Sindhu –

Kamalakar Bhatta, Bombay Edition of 1900 p.264.

The author of the Dharma-Sindhu says as above in almost

the same words – see Bombay Edition of 1988 p.234 of

that work.”

[Treatise on Hindu Law by Golapchandra Sarkar,

Sastri (6th Edition, published by Easter Law House (1927)

at p.745-748]

C. Alberuni who compiled his book “India in or about

1030 A.D.” on page 121 has written that the Hindus honour

their Idols on account of those who erected them, not on

account of the material of which they are, best example

whereof is Linga of sand erected by Rama. In his book on

pages 117, 209, 306-07 and 380 he has also narrated about

the Lord of Universe Sri Rama. Relevant extract from page

121 of “Alberuni’s India” Translated by Dr. Edward C.

Sachau (Reprint 2007 of the 1st Edn. 1910) published Low

Price Publications, Delhi reads as follows:

“The Hindus honour their idols on account of those who

erected them, not on account of the material of which they

are made. We have already mentioned that the idol of

Multan was of wood, e.g. the linga which Rama erected

when he had finished the war with the demons was of

sand. Which he had heaped up with his own hand. But

1811

then it became petrified all at once, since the astrologically

correct moment for the erecting of the monument fell

before the moment when the workmen had finished the

cutting of the stone monument which Rama originally had

ordered.” (ibid page 121)

D. According to the Hindus’ Divine Holy & Sacred

Scriptures there are two types of images one Svayambhu

(self-existent or self-revealed or self-built) and other

Pratisthita (established or consecrated). Where the Self-

possessed Lord of Universe Sri Vishnu has placed himself

on earth for the benefit of mankind, that is styled

Svayambhu. It does not require Pratistha. At

Ramajanamasthan the Lord of Universe Sri Vishnu appeared

and placed Himself on the said sacred place which itself

became Svayambhu for the reason that invisible power of

the Almighty remained there which confers merit and

salvation to the devotees. Consecrated artificial manmade

Lepya images i.e. moulded figures of metal or clay; and

Lekhyas i.e. all kinds of pictorial images including chiselled

figures of wood or stone not made by moulds are called

Pratisthita. Sri Mishra then quoted para 4.5 of "Hindu Law

of Religious and Charitable Trusts' of B. K. Mukherjea

5th Edition, Published by Eastern Law House at page 154.

E. According to the Holy Scripture "Sri Narsingh

Puranam" (62.7-14 ½ ) Pratistha of the Lord of Universe Sri

Vishnu should be done by chanting 1st Richa of the Purush

Sukta of Shukla Yajurved [I.e Vagasaneyee Samhita

Chapter XXXI] and be worshipped dedicating prescribed

offerings by chanting 2nd to 15th Richas of the Purush

Sukta. And if worshipper so wish after completion of

1812

worship he may by chanting 16th Richas of the Purush

Sukta pray to Sri Vishnu for going to his His own abode.

Above-mentioned verses of Sri Narsingh Puranam and

Hindi translation thereof reads as follows:

^^rL; loZe;RokPp LFkf.Mys izfreklq pA

vkuq"VHkL; lwDrL;] fo".kqLrL; p nsorkAA 7

iq#"kks ;ks tx}hta Jf"kukjk;.k% Ler%A

n|kRiq#"klwDrsua ;% iq"ik.;i ,o pAA 8

vfpZra L;kT¥xRloZa rsu oS lpjkpje~A

vk|;k··okg;sn~nsoepk rq iq#"kksRree~AA 9

f}rh;;k··lua n|kRik|a n|kRrrh;;kA

prqF;kZ?;Z% iznkrO;% iatE;k··peuh;de~AA 10

"k"B;k Lukua izdqohZr lIrE;k oL=eso pA

;Kksiohre"VE;k uoE;k xU/keso pAA 11

n'kE;k iq"inkua L;knsdkn';k p /kwide~A

}kn';k p rFkk nhia =;ksn';kpZua rFkkAA 12

prqnZ';k Lrqfra dRok iT¥n';k iznf{k.ke~A

"kksM';ks}klua dq;kZPNs"kdekZf.k iwoZor~AA 13

Lukua oL=a p uSos|a n|knkpeuh;de~A

"k.eklkfRlf)ekizksfr nsonsoa lepZ;u~AA14

laoRljs.k rsuSo lk;qT;ef/kxPNfrA

vc iwtudk eU= crkrs gSaA 'kqDy ;tqosZnh; #nzk"Vk;k;hesa tks

iq#"klwDr gS] mldk mPpkj.k djrs NUn gS] txr~ds dkj.kHkwr ije iq#"k

Hkxoku~ fo".kq nsork gSa] ukjk;.k _f"k gSa vkSj HkxoRiwtu esa mldk fofu;ksx

gSA tks iq#"klwDr ls Hkxoku dks Qwy vkSj ty viZ.k djrk gS] mlds }kjk

lEiw.kZ pjkpj txr~ iwftr gks tkrk gSA iq#"klwDr dh igyh _pkls

Hkxoku~ iq#"kksRredk vkokgu djuk pkfg;sA nwljh _pkls vklu vkSj

rhljh ls ik| viZ.k djsA pkSFkh _pk ls v?;Z vkSj ikWapoh ls vkpeuh;

fuosfnr djsaA NBh _pk ls Luku djk;s vkSj lkroha ls oL= viZ.k djsaA

vkBoha ls ;Kksiohr vkSj uoeh _pkls xU/k fuosnu djsaA nloha ls Qwy

p<+k;s vkSj X;kjgoha _pkls /kwi nsA ckjgoha ls nhi vkSj rsjgoha _pkls

uSos|] Qy] nf{k.kk vkfn vU; iwtu&lkexzh fuosfnr djsA pkSngoha _pkls

1813

Lrqfr djds ianzgohals iznf{k.k djsaA vUresa lksygoha _pkls foltZu djsA

iwtu ds ckn 'ks"k deZ igys crk;s vuqlkj gh iw.kZ djsa Hkxoku~ ds fy;s

Luku] oL=] uSos| vkSj vkpeuh; vkfn fuosnu djsA bl izdkj nsonso

ijekRekdk iwtu djusokyk iq#"k N% eghusesa flf) izkIr dj ysrk gSA blh

dze ls ;fn ,d o"kZrd iwtu djs rks og HkDr lk;qT; eks{kdk vf/kdkjh gks

tkrk gSAA7&14 1@2AA

(Sri Narsingh Puranam 62.7-14 ½ )

Be it mentioned herein that in the above Sri Narsingh

Puranam 62.13 Sloke enumerates Pradakshina i. e.

Parikrama (circumbulation) as 14th means of reverential

treatment of the Deity and thereby makes it integral part of

the religious customs and rituals of service and worship of a

Deity.

F. 1st Holy Spell of Purush Sukta of the Holy Devine

Shukla Yajurved [i.e Vagasaneyee Samhita Chapter

XXXI] prescribed by the Holy Sri Narsingh Puranam for

Pratistha of the Lord of Universe Sri Vishnu reads as

follows:

^^lglz'kh"kkZ iq#"k% lglzk{k% lglzikr~A

l Hkwfe loZr% LiRok·R;fr"Bkn~n'kkM+-xqye~AA1AA

eU=kFk Z&lHkh yksdksa esa O;kIr egkukjk;.k lokZRed gksus ls vuUr

f'kj okys] vuUr us= okys vkSj vuUr pj.k ¼iSj½ okys gSaA ;s ikap rRoksa

ls cus bl xksyd:i leLr O;fDr vkSj lef"V czzg~ek.M dks frjNk]

Åij] uhps lc rjQ ls O;kIr dj ukfHk ls nl vaxqy ifjfer ns'k] gn;

dk vfrdze.k dj vUr;kZeh :i ls fLFkr gq, FksA**

(ibid as translated by Swami Karpatriji and published by Sri

Radhakrishna Dhanuka Prakasan Samsthanam, Edn. Vikram

samvat 2048)

Simple English translation thereof reads:

‘The Almighty God who hath infinite heads, infinite eyes;

infinite feet pervading the Earth on every side and

1814

transgressing the universe installed Him in sanctum as

knower of inner region of hearts’.

Be it mentioned herein in the Mimamsa Darshan as

commented in Sanskrit by Sri Sabar Swami and in Hindi by

Sri Yudhisthir Mimamsak and Mahabhasya, meaning of

“Sahasra” has also been given “infinite” as also “one” apart

from “thousand” and according to context one or other

meaning is adopted.

G. "Nitya Karma Puja Prakash" has prescribed a Mantra

of Yajurved [i.e Vagasaneyee Samhita Chapter II.13] for

Pratistha of Lord Ganesh. Relevant portion of the said book

reads as follows:

^^vuUrj loZizFke x.ks'kth dk iwtu djsA x.ks'k&iwtuls iwoZ ml uwru

izfrekdh fuEu&jhfrls izk.k&izfr"Bk dj ysa&

izfr"Bk& ck;sa gkFkesa v{kr ysdj fuEu eU=ksa dks i<+rs gq, nkfgus gkFkls

mu v{krksadks x.ks'kth dh izfrekij NksM+rk tk;&

ÅWa euks twfrtqZ"krkekT;L; cgLifr;ZKfeea ruksRofj"Va ;Kk lfeea n/kkrqA

fo'os nsokl bg ekn;Urkeks3 Eizfr"BA

ÅWa vL;S izk.kk% izfr"BUrq vL;S izk.kk% {kjUrq pA

vL;S nsoRoe;kZ;S ekegsfr p d'puAA

bl izdkj izfr"Bk dj Hkxoku~ x.ks'kdk "kksM'kksipkj iwtua ¼i0la0

174&185 ds vuqlkj½ djsA rnuUrj uoxzg ¼i0la0 210½] "kksM'kekrdk

¼i0la0 205½ rFkk dy'k&iwtu ¼i0la0 186½ ds vuqlkj djsaA**

[Nitya Karma Puja Prakash published by Gita Press

Gorakhpur 32nd Edn. 2060 Vikram Samvat at page 244]

H. The Holy "Sri Satpath-Brahman" interpreting said

Mantra II.13 of the Holy Sri Shukla Yajurved [i.e.

Vagasaneyee Samhita] says that Pratistha of all Gods

should be done by said Mantra. Be it mentioned herein that

the Holy Sri Satpath-Brahman being Brahman part of

Divine Sri Shukla Yajurved, interpreting Mantras of said

1815

Vagasaneyee Samhita tells about application of those

Mantras in Yajnas (Holy Sacrifices). Said Mantra II.13 of

the Divine Sri Shukla Yajurved (Vagasaneyee Samhita) as

well as Sri Satpath-Brahman (I.7.4.22) with original texts

and translations thereof read as follows:

euksa twfrtqZ"krkekT;ZL; ogLifr;ZKfeea ruksRofjVa ;Ka lfeea n/kkrqA

fo'os n~sokl bg ekZn;Urkeks3Eizfr"BAA13AA

¼44½ ¼twfr% eu% vkT;L; tq?krka½ rsjk osxokueu |rdk lsou djs]

¼ogLifr% bea ;Ka ruksrq½ Kkudk Lokeh bl ;Kdks QSyk;s] ¼bea ;Ka

vfj"Va la n~/kkrq½ bl ;Kdks fgalkjfgr djds lE;d /kkj.k djsaA ¼foÜos

nsokl% bg ekn;UrkZ½ lc nso ;gka vkufUnr gksa] ¼vksa izfr"B½ ,slk gh gksos]

izfrf"Br gksaosAA13AA

(ibid Hindi Translation of Padmbhushan Sripad Damodar

Satvalekar,1989 Edn. Published by Swayadhyay Mandal

pardi)

English Translation of the abovenoted Hindi Translation

reads as follows:

“May your mind Delight in the gushing (of the ) butter.

May Brihaspati spread (carry through) this sacrifice ! May

he restore the sacrifice uninjured. May all the Gods rejoice

here. Be established/seated here.”

Sanskrit text of Sri Satpath-Brahman (I.7.4.22) as printed

in ‘Sri Shukla Yajurvediya Satpath Brahman’ Vol. I on its

page 150, Edn.1988 Published by Govindram Hasanand,

Delhi 110006 is reproduced as follows:

^^euks twfrtqZ"krkekT;L;sfrA eulk okTbn - - loZekIra

rUeuloSrRloZekizksfr cgLifr;ZKfeea ruksofj"Va ;K lfeea n/kkfofr

;f}oga rRlan/kkfr fo'ks nsokl bUg ekn;Urkfefr loZ os fo'os nsok%

losZ.ksoSrRlan/kkfr l ;fn dke;sr czw;kRizfr"Bsfr i|q dke;srkfi ukfnz;sr

AA22AA czkg~e.kke~ AA2- ¼7-4½AA v/;k;% AA7AA**

English translation of Sri Satpath-Brahman (I.7.4.22) as

1816

printed in Volume 12 of the series “The Sacred Books Of

The east” under title ‘The Satpath - Brahmana’ Part I on its

page 215, Edn. Reprint 2001 Published by Motilal

Banarasidass, Delhi 110007 is reproduced as follows:

22. [He continues, Vag. S. II, 13]: 'May his mind delight

in the gushing (of the) butter!' By the mind, assuredly, all

this (universe) is obtained (or pervaded, aptam)): hence he

thereby obtains this All by the mind.-'May Brhaspati

spread (carry through) this sacrifice! May he restore the

sacrifice uninjured!' - he thereby restores what was torn

asunder.-'May all the gods rejoice here!'. 'all the gods,'

doubtless, means the All : hence he thereby restores (the

sacrifice) by means of the All. He may add, 'Step

forward!' if he choose; or, if he choose, he may omit it.

(Sri Satpath-Brahman I.7.4.22)

I. 19th Holy Spell of Naradiya Sukta of the Holy Divine

Shukla Yajurved [i.e. Vagasaneyee Samhita Chapter

XXIII] is also widely applied by the Knower of the

Scriptures to invoke and establish a deity. Said Mantra reads

as follows:

^^x.kkauka Roka x.kifr gokegs fiz;k.kka Lok fiz;ifr gokegs fu/khuka

Rok fuf/kifr gokegs olks eeA

vkgetkfu xHkZ/kek Roetkfl xHkZ/keAA**

English Translation of this Mantra based on Hindi

Translation of Padmbhushan Sripad Damodar

Satvalekar,1989 Edn. Published by Swayadhyay Mandal

pardi reads as follows:

“O, Lord of all beings we invoke Thee. O, Lord of

beloved one we invoke Thee. O, Lord of Wealth we

invoke Thee. O abode of all beings Thou are mine. O,

Sustainer of Nature let me know Thee well because Thee

1817

the sustainer of Universe as embryo are Creator of All.”

[Shukla Yajurved Chapter XXIII Mantra 19]

J. The vivified image is regained with necessaries and

luxuries of life in due succession. Change of clothes,

offering of water, sweets as well as cooked and uncooked

food, making to sleep, sweeping of the temple, process of

smearing, removal of the previous day’s offerings of

flowers, presentation of fresh flowers and other practices are

integral part of Idol-worship. In public temple, in olden days

these were being performed by Brahmins, learned in Vedas

& Agamas. (Para 4.7 Hindu Law of Religious and

Charitable Trusts of B. K. Mukherjea 5th Edition,

Published by Eastern Law House at page 156.)

1695. Sri Ravi Shankar Prasad, Senior Advocate elaborated

the concept of “Deity” as per the notions of ancient Hindu

scriptures and, that, how can it be ascertained as to whether the

place of worship of Hindus is “Deity” within the term and

understanding in Hindu Law, how the properties held by

“Deity” is alienable and also the development of Hindu Law. He

placed, in extentio, certain excerpts from B.K.Mukherjea's

“The Hindu Law of Religious and Charitable Trusts” (Tagore

Law Lectures Fifth Edition revised by Sri A.C. Sen published

by Eastern Law House in 1983 reprinted in 2003) pages 25, 26,

27, 38, 39, 40, 152 to 154, 156 to 163 besides several authorities

of the Apex Court, this Court, Privy Council and various High

Courts. The concept of deity, a very distinguishing feature of

Hindu faith is one that, i.e., eternal, permanent and omnipresent

wherein the deity is the image of the Supreme Being. The

temple is the house of the deity and to constitute a temple it is

enough if the people believe in its religious efficacy, i.e., there is

1818

some supreme super power existing there whom they need to

worship and invoke its blessings.

1696. It is contended that religious purpose under the

Hindu law must be determined according to Hindu notions. In

support of his submission, he placed reliance on para 2.27 on

page 75 of “The Hindu Law of Religious and Charitable

Trusts” by B.K. Mukherjea (supra), which says:

"These observations, if I may say so, apply with full force

to trusts created by Hindus for religious purposes.

Undoubtedly the court and not the donor is the judge, of

whether an object is charitable or not, but the court cannot

enter into the merits of particular religious doctrine, and

therefore must remain neutral. The divine service of a

particular religion is defined by the doctrines of the

religion itself and no court can appreciate their spiritual

efficacy, unless it knows these doctrines and hypothetically

admits them to be true. In controversial matters the court

cannot possibly decide whether the doctrines are beneficial

to the community or not. It has got to act upon the belief

of the members of the community concerned, and unless

these beliefs are per se immoral or opposed to public

policy, it cannot exclude those who profess any lawful

creed from the benefit of charitable gifts..."

1697. It is said that the right of a deity of being worshipped

by its followers ought not to be compared with a secular law

relating to management of deities for they are fundamentally

distinct. The present case relates to the site/place of birth of

Lord Rama, i.e., Ramjanambhumi which itself is a deity for the

reason of the belief and faith of Hindu public since time

immemorial that the Lord of Universe, the Supreme Being

1819

Vishnu manifested thereat as an incarnation in human form

making that place sacred and pious and mere visit and Darshan

thereof would be sufficient to shower blessing, happiness and

salvation to the worshippers. By the very nature, the deity in

question is not only inalienable but cannot be possessed or

owned by any individual, legal or natural. This deity, i.e., the

place itself is a legal person, i.e. a juridical person possessing all

the facets of a legal person as recognized in law.

1698. Sri Prasad submitted that a self created Deity i.e.

Sayambhu, need not be in a particular shape or form and even a

place can be said to be a Deity. It is extra commercium, non-

destructible, inalienable, and even if there is no structure, it is a

temple if has the sanctity of pious place being worshipped by

the believers with a faith that the religious merits shall be gained

by them on offering prayer or worship thereat.

1699. Sri Prasad relied on Ram Jankijee Deities & Ors. Vs.

State of Bihar & Ors. (1999) 5 SCC 50=AIR 1999 SC 2131

(para 13 to 28) and Saraswathi Ammal & Anr. Vs. Rajagopal

Ammal AIR 1953 SC 491 (para 6) to demonstrate as to what is

the concept of deity in Hinduism. He submits that the religious

issues pertaining to Hindu religion are to be considered and

decided according to Hindu notions and referred to Shiromani

Gurdwara Prabandhak Committee, Amritsar Vs. Som Nath

Dass & Ors. (Supra) (para 30 to 42); Poohari Fakir

Sadavarthy Vs. Commissioner, H.R. & C.E. AIR 1963 SC 510

(at page 512); Thayarammal Vs. Kanakammal & Ors. (2005)

1 SCC 457 (para 16); Idol of Thakurji Shri Govind Deoji

Maharaj, Jaipur Vs. Board of Revenue, Rajasthan, Ajmer &

Ors. AIR 1965 SC 906 (para 6); Mahant Ram Saroop Dasji

Vs. S.P.Sahi, Special Officer-in-charge of Hindu Religious

1820

Trusts and others AIR 1959 SC 951 (para 10); Manohar

Ganesh Tambekar & Ors. Vs. Lakhmiram Govindram &

Ors. (1888) ILR 12 Bom 247.

1700. Once an idol is always an idol and it never dies. For

the above proposition, he referred to the Madras High Court's

decision in Board of Commissioners for Hindu Religious

Endowments, Madras Vs. Pidugu Narasimham & Ors. AIR

1939 Madras 134 (at page 135) and T.R.K. Ramaswami Servai

& Anr. Vs. The Board of Commissioners for the Hindu

Religious Endowments, Madras, through its President AIR

(38) 1951 Madras 473 (para 47). The meaning; definition and

concept of Temple in general as well in legislative enactments

must be read and understood in the light of the Shastrik Law,

otherwise it would be ultra vires of the Constitution. He refers to

Gedela Satchidananda Murthy Vs. Dy. Commr., Endowments

Deptt., A.P. & Ors. (2007) 5 SCC 677 (at page 685); T.V.

Durairajulu Naidu Vs. Commissioner, Hindu Religious and

Charitable Endowments (Administration) Department,

Madras AIR 1989 Madras 60 (para 18); Sri Adi Visheshwara

of Kashi Vishwanath Temple, Varanasi & Ors. Vs. State of

U.P. & Ors. (1997) 4 SCC 606 (para 30); Gokul Nathji

Maharaj & Anr. Vs. Nathji Bhogi Lal AIR 1953 All. 552;

Pramath Nath Mullick Vs. Pradhyumna Kumar Mullick &

Anr. AIR 1925 PC 139 (at page 143); Bhupati Nath Smrititir

the Bhattacharjee Vs. Ram Lal Mitra & Ors. 1909 (3) Indian

Cases (Cal.) (FB) 642 (para 73).

1701. The manner in which a deity can hold property is

illustrated cited before us the decision of the Apex Court in

Jogendra Nath Naskar Vs. Commissioner of Income-Tax

(supra) (para 5 and 6); Deoki Nandan Vs. Murlidhar & Ors.

1821

AIR 1957 SC 133 (para 6); Kalanka Devi Sansthan Vs. The

Maharashtra Revenue, Tribunal Nagpur and Ors. AIR 1970

SC 439 (para 5 at page 442) and Narayan Bhagwantrao

Gosavi Balajiwale Vs. Gopal Vinayak gosavi & Ors. AIR

1960 SC 100 (para 35 to 38).

1702. An idol is extra commercium and inalienable. He

supported the above proposition by citing Mukundji Mahraj

Vs. Persotam Lalji Mahraj AIR 1957 Allahabad 77 (para 28

and 29); Kasi Mangalath Illath Vishnu Nambudiri & Ors Vs.

Pattath Ramunni Marar & Ors. AIR 1940 Madras 208; Smt.

Panna Banerjee and Ors. Vs. Kali Kinkor Ganguli AIR 1974

Cal. 126 (para 65 and 66); Kali Kinkor Ganguly Vs. Panna

Banerjee & Ors. AIR 1974 SC 1932 (para 23 and 25); Khetter

Chunder Ghose Vs. Hari Das Bundopadhya (1890) 17 ILR

Cal. 557 (at page 559).

1703. Sri Prasad refers to State of West Bengal Vs. Anwar

Ali Sarkar & Anr. AIR (39) 1952 SC 75 (para 85) and read the

observations how Hindu Law has developed. He relied on the

History of Dharmashastra by P.V. Kane Vol. 2, Part-2,

Chapter XXVI page 911 and Vol. 3 page 327 and 328 and also

Bumper Development Corp. Ltd. Vs. Commissioner of Police

of the Metropolis and others 1991 (4) All ER 638; Addangi

Nageswara Rao Vs. Sri Ankamma Devatha Temple

Anantavaram 1973 Andhra Weekly Report 379.

1704. To illustrate the concept of deity, i.e., continued

supernatural power, omnipotent, never dying, never changed, he

cited Maynes' Hindu Law & Usages”, 16th Edn. and the “The

Classical Law of India” by Robert Lingat.

1705. Sri R.L.Verma, learned counsel appearing on behalf of

Nirmohi Akhara defendant No.3 raised objection about the

1822

maintainability of suits through next friend and contended that

there is no averment in the entire plaint (Suit-5) as to why the

plaintiff no.3 be allowed to file suit on behalf of plaintiffs no. 1

and 2 as their next friend. He submits that neither there is any

averment that the already working Shebait is not looking after

the Deity faithfully and religiously nor there is any averment

that there is no Shebait at all of the Deities, plaintiffs no.1 and 2,

nor there is any averment that plaintiff no.3 himself is a

worshipper of the Deities (plaintiffs no.1 and 2) and therefore, is

interested in the welfare and proper management of the property

and daily care of Deity themselves. Sri Verma submits that

Order XXXII, Rule 1 in terms has no application to Suit-5. The

suit, as framed, is not maintainable through the next friend,

hence, is liable to be rejected on this ground alone.

1706. Sri Verma further submits that O.P.W.-2 i.e. late

D.N.Agarwal in his own statement under Order X, Rule 2

recorded on 20.4.1992 has admitted that the idols kept at Ram

Chabutara, in the outer courtyard was shifted to the inner

courtyard and kept under the central dome in the disputed

building in the night of 22/23rd December, 1949. Further that it

is also an admitted position that the idols while kept on Ram

Chabutara in the outer courtyard were being looked after and

managed by the priest of Nirmohi Akhara and the outer

courtyard was in possession of Nirmohi Akhara. It means that

the idols belong to Nirmohi Akhara, shifted from Ram

Chabutara to the central dome of the disputed building and that

being so, the idols cannot be held independent legal entity

outside the religious endowment i.e. "Nirmohi Akhara".

1707. Sri M.M. Pandey, learned counsel for the plaintiffs

(Suit-5), in respect to Issues No. 1 and 21 (Suit-5) has submitted

1823

as under:

A. Existence of a Supreme Being which controls

everything and possesses the capacity of conferring good on

human beings, is admitted alike by Islam (Allah),

Christianity (God) and Hindu Dharma (Bramhan or Onkar).

This Supreme Being is outside the realm of Courts, hence is

not a Juristic entity. According to Islam, a Messenger

(Prophet Mohammad) pronounced the commands of Allah in

the form of Quran and other spiritual edicts; according to

Christianity too, a Messenger came earlier (Christ – Son of

God) to deliver the Gospel of God. According to Hindus,

Bramha manifests Himself in human form by 'Reincarnation'

(Avatar) with all the powers of the Supreme Being subject to

self-imposed human limitations. William Finch recorded this

popular perception about Ram in early 17th Century.

Bramha too is seen in many Forms: Bramha (the Creator),

Vishnu (the Preserver), Mahesh (the Destroyer), Shakti (the

Universal Energy) etc. Ram and Krishna are Reincarnations

of Vishnu; In Shrimad Bhagwat Gita Chapter X, verse 31,

Shri Krishna declared: "Among warriors, I am Ram."

B. This self-manifestation of the Supreme Being is

known as SWYAMBHU reincarnation, and the place of

reincarnation is treated to be sacred just as Islam holds

Mecca (birthplace of Prophet Mohammad) or Christianity

holds Bethlehem/Jerusalem (birthplace of Christ) as sacred.

While Islam and Christianity do not have a concept of Deity,

Hindu Dharma has elevated the concept of Sacredness into

an object of Divinity fit for Worship and recognises it as a

Deity in a physical form too with a Faith that its worship has

the capacity of conferring well. At the same time, "a Hindu

1824

does not worship the 'Idol or the material body made of clay

or gold or other substance' as a mere glance of the mantras

or prayers will show. They worship the eternal Spirit of the

Deity, or certain attributes of the same, in a suggestive form,

which is used for the convenience of contemplation as a

mere symbol or emblem. It is the incantation of the mantras

peculiar to a particular Deity that causes the manifestation or

presence of the Deity or, according to some, the gratification

of the Deity.

C. A mere birthplace without a physical outward shape

may be a Deity. There is no question of consecration of

Swyambhu Deity. (See Addangi Nageswara Rao (supra)

D. In addition to Swyambhu Deities, Idols/Images are

made of any material and are CONSECRATED with the

Spirit of Supreme Being through certain Vedic rites, known

as Pran-Pratishtha whereby they become fit receptacles of

Divinity; such Idols/Images too are recognised as Deities. In

these Suits, the Plaintiffs of OOS 4 of 1989, Sunni Board &

others, admitted in paras 11 and 23 of their plaint that on

23.12.1949, "a large crowd of Hindus…………entered the

mosque and desecrated the mosque by placing Idols inside

the mosque". This implies an admission that the Idols were

Deities as known to Hindu law, otherwise mere images (like

printed pictures) could not desecrate the mosque; Sunni

Board and others are barred/estopped, by this admission,

from urging that the Idols were not consecrated.

E. 'Images/Idols' are symbols of Supreme Being; in

worshipping the Image, the Hindu purports to worship the

Supreme Deity and none else. It is for the benefit of the

worshippers that there is a concept of Images of Supreme

1825

Being which is bodiless, has no attribute, is pure Spirit and

has got no second (B.K. Mukharjea, 1983 Edn. p.26). The

'Self-revealed' Images are called SWYAMBHU where the

Self-possessed Vishnu has placed himself on earth in stone

or wood for the benefit of mankind. Thus 'Asthan Ram

Janmabhumi', Plaintiff No. 2 in OOS 5 of 1989 is a

Swyambhu Deity – the place where Lord Vishnu manifested

Himself and was born as RAM, son of Kaushalya/King

Dashrath.

F. The decisions of Indian Courts as well as Privy

Council have held uniformly that Hindu Idol is a Juristic

Person. Hindu Idol is according to long established authority

founded upon the religious Customs of Hindus and

recognition thereof by Courts of Law, a juristic entity. 'Deity

has a juridical status with power of suing and being sued. Its

interests are attended to by the person who has the Deity in

his charge and who in law is his manager with all the powers

which would in these circumstances, on analogy, be given to

an infant heir. This doctrine is firmly established.

G. As a Juristic Person, the 'Hindu Deity' is a Class by

Himself with no exact parallel. The Deity in short is

conceived of as a living being and is treated in the same way

as the master of the house would be treated by his humble

servant. The daily routine of life is gone through with minute

accuracy, the vivified Image is regaled with necessities and

luxuries of life in due succession even to the changing of

clothes, the offering of cooked and uncooked food and

retirement to rest.

H. Endowment in favour of Deity is a perpetual estate; it

is capable of receiving and holding property, but it does not

1826

possess a power of alienation, hence endowment in favour of

Deity is necessarily a tied up or perpetual estate; absolute

gifts of lands or money perpetually to an Idol or for other

religious purposes have been held to be valid in Hindu Law

from early times. A religious endowment does not create

title in respect of the dedicated property in any body's

favour, and property dedicated for religious charitable

purpose for which the owner of the property or donor has

indicated no administrator or manager, a property dedicated

for general public use is itself raised to the category of a

Juristic Person and such a property vests in the property

itself as a Juristic Person. This special legal status squarely

applies to Asthan Ram Janma Bhumi, Plaintiff No.2 in OOS

5 of 1989; the spot where Ram was born, and all

properties appurtenant thereto belong to and vest in the

spot itself as juristic person. No body else, not even the

Shabait can become owner of the Deity or property of

Deity.

I. Since such vesting of the property is a perpetual estate

and the Deity itself does not possess the power of its

alienation, it follows that no law can divest the Deity of its

property under any circumstance whatsoever. A Temple is

the 'house' of the Deity. By destroying the house, neither the

Deity nor Deity's property, on which the house stood, could

cease to belong to Deity. Section 18 of Transfer of Property

Act recognises that the rule against perpetuity under that

Act, does not apply to transfer of property for the benefit of

public; such exclusion is in-built in Hindu Law itself.

J. Vide, page 19-20 of Mulla's "Principles of Hindu

Law, 1958 Edn, some of the important recognised

1827

Dharmashastras are known as Smritis of Manu (200 BC),

Yajnavalkya (1st Century AD –p. 24)), Narad (200 AD –p.

26)), Parashara, Brihaspati, Katyayana (4th-5th Century

AD – p.32) etc; they are of universal application, not in

substitution for another but all treated as supplementary to

each other (-p.20).

K. At page 33, Mulla records: "Katyayana maintains

unimpaired the distinctive qualities of Smriti of Brahaspati

to which he freely refers. His exposition is authoritative and

remarkable for its freshness of style and vigorous approach.

There can be little doubt that this Smriti must have been

brought into line with the current law. It must have

commanded a wide appeal as may readily be gathered from

the profuse manner in which it has been quoted in all leading

commentaries. The arduous task of collecting all the

available texts of Katyayana from numerous commentaries

and digests was accomplished by Mahamahopadhyaya Kane

who collated and published in 1933 about one thousand

verses of the Smrtiti on Vyavahara (Procedure) with an

English translation".

L. Statement of law in Katyayana Smriti is of special

significance in these suits. The force, sanctity and King's

duty relating to Temples has been strongly emphasised in the

Hindu Law from ancient times. Apararka [held to be an

Authority under Hindu Law by PC in Buddha Singh Vs.

Laltu Singh, 42 I.A. 208 = ILR (1915) 37 All 604) (Mulla

p.51-52 acknowledged by Banares School] says that King

should not deprive Temples of their properties (History of

Dharam Shastra – Government Oriental Series - by P.V.

Kane, Volume II Part II page 913). At page 911 Kane

1828

quotes Yagnavalkya that it is part of King's duty to prosecute

and fine persons interfering with or destroying the property

of Temples; he cites Manu (IX/280) requiring the King to

pronounce death sentence on who breaks a Temple, and him

who breaks an image to repair the whole damage and pay a

fine of 500 pannas. The Deity and Temple not only served

the object of Worship of Divine, but also served social

purpose.

M. A significant recent decision of English Courts has

recognised the concept of Hindu Idol's disability and

representation by 'next friend', namely Bumper

Development Corporation Ltd Vs. Commissioner of Police

of the Metropolis & Others (supra) (including Union of

India and other Indian Parties); a decision rendered by the

Trial Court was upheld by Court of Appeal and House Lords

refused Leave to Appeal against CA decision, popularly

known as Nataraj Case. In Tamil Nadu, near a 12th Century

Temple which had laid in ruins since 13th Century, (called

Pathur Temple), and remained un-worshipped since

centuries (at pages 643 & 640), a bronze Hindu Idol, known

as Siva Nataraj, was found by a labourer, Ramamoorthi, in

1976 during excavation of the ruins. The Nataraj Idol was

sold through several hands and ultimately reached London

market; criminal investigation for offence of theft of Idol

was started and London Metropolitan Police seized it.

Bumper Development Corporation laid claim to it as

purchaser and sued for its possession and damages. Several

other Claimants were impleaded to the suit: these included

Union of India, State of Tamil Nadu, Thiru Sadagopan

(Claimant No 3) as "the fit person" of the Temple and

1829

Temple itself (Claimant No. 4) through Claimant No3. (The

concept of "fit person" is same as "Next Friend" at page

643). During pendency of the proceedings, a Sivalingam

(which too was found buried in the ruins of the Temple) was

reinstated as an object of worship at the site of the Temple.

The Trial Judge, relying upon B.K.Mukherjea's Hindu Law

of Religious and Charitable Trusts (page 646 of Report)

held that Claimant No4 (Temple) suing through Claimant

No. 3 as 'fit person, or custodian or next friend' (page 643 of

Report) had proved his title superior to that of Bumper and

'the pious intention of 12th Century notable who gave the

land and built the Pathur Temple remained in being and was

personified by the Sivalingam of the Temple which itself

had a title superior to that of Bumper'. The Court of Appeal

upheld the finding of the Trial Court Judge that under Hindu

Law, the Temple was a juristic entity and Claimant No. 3

(next friend Thiru Sadagopan) had the right to sue and be

sued on behalf of the Temple. The right of the Temple

through the Next Friend to possess the Nataraj Idol was

upheld (page 648 of Report); House of Lords refused Leave

to Appeal (page 649 of Report). This 20th Century decision

of English Courts has striking similarity with the present

Ram Janmabhumi case: 12th Century Temple remained in

ruins & un-worshipped through centuries (in our case it was

11th-12th Century Vishnu-Hari Temple which was

demolished in 1528 and Babri Mosque, DS was erected at its

place, so that the Temple/Deity 'remained in ruins with

existing foundations'). During the pendency of Bumper

Development Corporation case, a Shivalingam, found buried

in the ruins of the Temple was 'reinstated'. In our case, ASI

1830

found an ancient 'Circular Shrine' embedded in disputed

area, DS was destroyed on 6.12.1992, and at its place a

make-shift Temple was erected at Ram Janma Bhumi with

Bhagwan Shri Ramlala installed in it; so both Deities Plffs 1

& 2 of OOS 5 of 1989 got into position. In Bumper case, the

'pious intention of 12th Century' dedication was held by the

Trial Court 'to remain in being' as personified by the

Sivalingam of the Temple, a juristic entity, which was

represented by 'Next Friend. The same concept is laid down

in the case of Adangi Nageswara Rao Vs. Sri Ankamma

Devatha Temple (supra) (paras 6 & 8 – see para 36 of these

Arguments). So also, in our case, Vishnu-Hari Temple of

11th-12th Century must be deemed 'to remain in being' on

erection of make-shift Temple coupled with Circular Shrine

and the Deity/Temple – Plaintiffs 1 & 2 must be held to be

duly represented through Plaintiff No. 3 in OOS 5 of 1989 as

Next Friend.

N. As mentioned earlier, a Hindu Deity is a Class by itself

(See Para 40), there is no exact analogy or parallel. Its affairs

are managed by a Shebait, but the Shebait is neither owner

nor trustee of the Deity or its property as known to Indian

Trusts Act (Section 1). 'Beneficiary' of the dedication (actual

or assumed) is the Deity and every Worshipper/Devotee; the

latter has interest enough to force the Shebait to perform his

functions duly even through a Court action, if necessary.

Supreme Court has held in the case of Bishwanath Vs. Sri

Thakur Radha Ballabhji (AIR 1967 SC 1044) that

worshippers of an Idol are its beneficiaries, though only in a

spiritual sense, and persons who go in only for the purpose

of devotion have, according to Hindu Law and religion, a

1831

greater and deeper interest in temples than mere servants

who serve there for some pecuniary advantage; it goes on to

say: "That is why decisions have permitted a worshipper in

such circumstances to represent the Idol and to recover the

property for the Idol". It is the duty of the State (King) to

protect the Deity and its property – a shade of this duty is

found in Section 92 CPC. [In para 40 of Guruvayur

Devasom Managing Committee Vs. C.K. Rajan, AIR 2004

SC 561, the Supreme Court has held, "In any event, as a

Hindu Temple is a juristic person, the very fact that S. 92 of

the Code of Civil Procedure, seeks to protect the same, for

the self-same purpose, Arts. 226 and 32 could also be taken

recourse to."] Shebait cannot alienate the property of the

Deity.

O. A religious endowment does not create title in respect

of the dedicated property in any body's favour, and property

dedicated for religious charitable purpose for which the

owner of the property or donor has indicated no

administrator or manager, a property dedicated for general

public use is itself raised to the category of a Juristic Person

and such a property vests in the property itself as a Juristic

Person. This special legal status squarely applies to Asthan

Ram Janma Bhumi, Plaintiff No.2 in OOS 5 of 1989; the

spot where Ram was born, and all properties appurtenant

thereto belong to and vest in the spot itself as juristic person.

P. An idol is in the position of a minor and when the

person representing it leaves it in a lurch, a person interested

in the worship of the idol can certainly be clothed with an ad

hoc power of representation to protect its interest. [See

Bishwanath Vs. Shri Thakur Radha Ballabhji (supra)].

1832

Q. Temples are sancrosanct and there cannot be alienation

of a public temple under any circumstance being res extra

commercium. In this regard he placed reliance on

Mukundji Mahraj Vs. Persotam Lalji Mahraj (supra)

(Para 28-29); Manohar Ganesh Tambekar Vs. Lakhmiram

Govindram (supra) (Para 88); Kali Kinkor Ganguli Vs.

Panna Banerji (supra) (Paras 24-25, Page 1936); and, Kasi

Mangalath Nath Illath Vishnu Namboodiri (supra) (Para

2).

R. Smt. Panna Banerjee Vs. Kali Kinkar (supra) (Para 65-

66) cited to show that the deity cannot be sold. It is not a

property and none can be its owner not even its founder.

S. Khetter Chunder Ghosh Vs. Hari Das

Bandopadhyay (supra) (para 66, p. 559) is an authority for

the proposition that the deity is not a property. None can

own it. Idol is not a transferable property.

T. The fact is that the “disputed area” has always been

considered to be the “ Deity” . The deity in the present case

is “Sri Ram Janmasthan”, being the place where “Sri Ram

Lalla” is Virajman that is resident. The said “disputed area”

has always been considered sacred by the Hindus before and

even after the construction of the disputed structure. The

extensive archaeological evidence found by excavation by

the Archaeological Survey of India clearly shows that before

the construction of the structure known as the “Babri

Masjid” in 1528 , there was an existent Hindu temple

underneath it.

U. “The Hindu Law of Religious and Charitable

Trusts” by B.K. Mukherjea also states at Page 160-162:

“Para 4.13. ....... The Smriti writers have laid down that if

1833

an image is broken or lost another may be substituted in

its place; when so substituted it is not a new personality

but the same deity, and properties vested in the lost or

mutilated thakur become vested in the substituted thakur.

Thus, a dedication to an idol is really a dedication to the

deity who is ever-present and ever-existent, the idol being

no more than the visible image through which the deity is

supposed specially to manifest itself by reason of the

ceremony of consecration.”

V. Presence of an idol is not the only consideration to

determine whether the place is a temple or not; what is

important is whether a certain group of Hindus consider it

sacred or whether a certain group can feel “divine presence”

in the place.

W. An Idol is not a precondition. If the public goes for

worship and consider that there is a divine presence, then it

is a temple. He relied on Ram Janki Deity Vs. State of

Bihar, 1999 (5) SCC 50 (Paras 13 to 19); P.V. Durrairajulu

Vs. Commissioner of Hindu Religious Trusts, AIR 1989

Madras 60 (Para 18).

X. Referring to Poohari Fakir Sadavarthy of Bondilipuram

(supra) (Para 8) Sri Pandey contended that the institution

will be a temple if two conditions are satisfied – one – it is a

place of public religious worship – and the other – it is used

as of right by the Hindu community or any section thereof as

a place of worship. (See

Y. Existence of idol not necessary if the public which go

there consider that there is a divine presence in a particular

place and by offering worship at that place they are likely to

be the recipient of the bounty or blessings of God, then you

1834

have got the essential feature of a temple. The test is not the

installation of an idol and the mode of its worship. Here Sri

Pandey refers T.R.K. Ramaswamy Servai and Anr. Vs.

The Board of Commissioners (supra) (Para 47); Board of

Commissioners of Hindu Endowment Vs. P. Narasimha

(supra) (Para 5 page 135); and Gedela Satchidanand Murti

(supra) (Para 16, pages 684 and 685).

Z. The nature of Hindu religion is monism. It believes in

one supreme-being who manifests himself in many forms.

This is the reason why Hindus start adoring any deity either

handed down by tradition or brought by a Guru, Swayambhu

and seek to attain the ultimate supreme as held in Sri Adi

Vishweshara of Kashi Vishwanath Temple (supra) (Para

30 page 631).

AA. According to Hindu notion what is worshipped in a

temple is not the stone image or image made of wood. It is

the God behind the image which is the object of worship.

The real owner of the property dedicated to a temple is

deemed to be God himself represented through a particular

idol or deity which is merely a symbol. Property worshipped

for more than 300 years, there can be no direct evidence of

consecration. After the length of time it is impossible to

prove by affirmative evidence that there was consecration.

However, the idol was duly recognized by all who believed.

[See Gokul Nath Ji Maharaj Vs. Nathji Bhogilal (supra)

(para 4 and 5)].

AB. Not only the area where Sri Ram Lalla is Virajman and

is believed to be his place of birth as a deity but the entire

complex is elevated to the status of a deity because the

dedicated property gets imbued with a sacred character.

1835

AC. Mahant Ram Saroop Dasji Vs. S.P. Sahi (supra)

(Pages 958-959, Paras 10 & 12) was cited and it is submitted

that it is difficult to visualize that a Hindu private Debuttar

will fail for a deity is immortal. Even if the idol gets broken

or lost or stolen another image may be consecrated and it

cannot be said that the original object has ceased to exist. An

idol which is a juridical person is not subject to death

because the Hindu concept is that the idol lives for ever and

placed reliance on Idol of Thakur Sri Govind Dev Ji

Maharaj (supra) (Page 908, Para 6 ).

AD. Deity is a living being to be treated like a master. It is

not a moving chattel. Hindu idol is not property. Custodian

cannot destroy or cause injury. Pramatha Nath Mullick Vs.

Pradhyumna Kumar Mullick (supra) (Para 9).

AE. Referring to Full Bench decision of Calcutta High

Court in Bhupati Nath Smrititirth Bhattacharjee (supra)

(Para 73) Sri Pandey contended that as per Shastric Hindu

Law if the image is broken or lost another may be substituted

in its place and when so substituted it is not a new

personality but the same deity with properties previously

vested in the lost or mutilated Thakur.

AF. The question as to what “portion” of the property is

sacred is irrelevant since Hindus consider the entire area

being the place of birth of Sri Ram as a deity in itself being

the “ Sri Ram Janmasthan / Sri Ram Janmabhoomi”, being

the Plaintiff No.2 .The presence of Sri Ram Lalla Virajman,

being the Plaintiff No.1 on the said Sri Ram Janmasthan

( being the Plaintiff No.2 )does not detract from the fact that

the entire disputed area is the place of birth of Sri Ram and

therefore a deity in itself to the Hindus. The witnesses

1836

including foreign travelers have repeatedly confirmed that

the entire premises has been worshipped, “parikrama” was

undertaken by the devotees, even after the construction of

the disputed structure. He submitted that there has been no

denial of the above statement by any of the parties . He

referred to paras 20 and 22 of the plaint and pointed out that

the same have not been denied.

AG. Any worshipper is entitled to act on behalf of the Idol

if the idol is undefended by a Shebait and cannot look after

itself. This view finds support in Bishwanath Vs. Shri

Thakur Radha Ballabhji, (supra) (para 10 and 11) and

Veruareddi Ramaraghava Reddy Vs. Konduru Seshu

Reddy, 1966 Supp SCR 270.

AH. In the present case since the deities of Sri Ram

Janmabhumi and Sri Ram Lalla Virajman were not being

able to look after themselves and no one was acting to

protect their interests and their premises were being

occupied or was being attempted to be occupied by those

who were intending to extinguish the very right to be

worshipped of the deities and repeated attempts were being

made to interfere with the possession and the right of being

worshipped by the devotees , hence concerned worshippers

compromising of eminent and spiritual men of the Hindu

community being represented by the Plaintiff No.3 were

forced to approach the Court to protect the right of the

deities (being the Plaintiffs No.1 and 2 ) to be worshipped .

AI. In support of the contention that the place of worship

itself and the Deities seated at the disputed site are juridical

persons Sri M.M. Pandey relied on Guruvayur Devaswom

Managing Committee and anr. Vs. C.K. Rajan (Supra);

1837

Manohar Ganesh Tambekar Vs. Lakhmiram Govindram

(supra); Avadh Kishore Dass Vs. Ram Gopal, 1979 SC

861; Angurbala Mullick Vs. D. Mullick, AIR 1951 SC 293;

Kamaraju Venkata Krishna Rao Vs. Sub-Collector,

Ongole, AIR 1969 SC 563; Thayarammal Vs.

Kanakammal (supra); Krishna Singh Vs. Mathura Ahir,

AIR 1972 Allahabad 273; Sarangadeva Periya Matam Vs.

Ramaswami Goundar, AIR 1966 SC 1603;

Vallabhacharya Swami Varu (Deity) of Swarna Vs. Deevi

Hanumancharyulu, AIR 1979 SC 1147; Gollaleshwar Dev

Vs. Gangawwa Kom Shantayya Math, AIR 1986 SC 231;

Shiromani Gurudwara Prabandhak Committee Amritsar

Vs. Shri Som Nath Dass (supra); Hindu Religious and

Charitable Endowments, Mysore Vs. Ratnavarma

Heggade, AIR 1977, SC 1848; Ram Jankijee Deities Vs.

State of Bihar (supra) (p.50); Gokul Nathji Maharaj Vs.

Nathji Bhogi Lal (supra); Bishwanath Vs. Shri Thakur

Radhaballabhji, (supra); Kalanka Devi Sansthan (supra);

Jogendra Nath Naskar Vs. Commissioner of Income-tax

(supra); P.V. Sadavarty Vs. Commissioner of Income-tax,

AIR 1963 SC 510; Gurudwara Prabandhak Committee

Vs. Shiromani GPC, 2004 (4) SCC 146; Deoki Nandan Vs.

Murlidhar (supra); Official Trustee of West Bengal Vs.

Commissioner of Income-tax, AIR 1974 SC 1355; Idol of

Thakurji Shri Govind Deoji Maharaj, Jaipur (supra);

Vemareddi Ramaraghava Reddy Vs. Konduru Seshu

Reddy, AIR 1967 SC 436; K. Manahunaitha Desikar Vs.

Sundaralingam, AIR 1971 Madras 1 (FB).

1708. Sri K.N. Bhat, Senior Advocate answering the issues

no. 1 and 2 (Suit-5), contended that Bhagwan Sri Ram of

1838

Ayodhya is undoubtedly a deity as such a juristic person with

capacity to sue and being sued. Referring to B.K. Mukherjea's

Hindu Law of Religious and Charitable Trusts (supra) in his

written arguments he says:

A. “A Hindu idol”, the Judicial Committee observed in

one of its recent pronouncements, “is according to long

established authority founded upon the religious customs

of the Hindus and the recognition there of by Courts of

Law, a juristic entity. It has a juridical status with the

power of suing and being sued.” You should remember,

however, that the juridical person in the idol is not the

material image, and it is an exploded theory that the

image itself develops into a legal person as soon as it is

consecrated and vivified by the Pran Pratistha ceremony.

It is not also correct that the Supreme Being of which the

idol is a symbol or image is the recipient and owner of the

dedicated property. ( p.38.)

B. From the spiritual standpoint the idol might be to the

devotee the very embodiment of Supreme God but that is

a matter beyond the reach of law altogether. (p.39.)

C. The early Vedic hymns make no allusion to idol

worship, and Max Muller held that idolatry did not exist

among them. ‘The religion of the Vedas,’ he declared,

‘knows no idols.’ The Jabala Upanishad says, ‘Images are

meant only as aids to meditation for the ignorant’. (p.149)

D. The image simply gives a name and form to the

formless God and the orthodox Hindu idea is that

conception of form is only for the benefit of the

worshipper and nothing else. (p.153.)

E. “The idol, deity or religious object,” observed West

1839

and Buhler in their Digest on Hindu Law, “is looked upon

as a kind of human entity.” It is a sacred entity and ideal

personality possessing proprietary rights. The Judicial

Committee has pointed out on more occasions than one

that it is only an ideal sense that property can be said to

belong to an idol and the possession and management of it

must, in the nature of things, be entrusted to some person

as Shebait or manager. The legal principle has thus been

summed up in one of the pronouncements of the Judicial

Committee:

F. “A Hindu idol is, according to long-established

authority, founded upon the religious customs of the

Hindus, and the recognition thereof by courts of law, a

‘juristic entity.’ It has a juridical status, with the power of

suing and being sued. Its interests are attended to by the

person who has the deity in his charge and who in law is

its manager, with all the powers which would, in such

circumstances, on analogy, be given to the manager of the

estate of an infant heir. It is unnecessary to quote the

authorities; for this doctrine, thus simply stated, is firmly

established.”( pp.158)

G. Existence of idol is not necessary for temple.-

While usually an idol is instituted in a temple, it does not

appear to be an essential condition of a temple as such. In

an Andhra case, it was held that to constitute a temple, it is

enough if it is a place of public religious worship and if

the people believe in its religious efficacy, irrespective of

the fact whether there is an idol or a structure or other

paraphernalia. It is enough if the devotees or the

pilgrims feel that there is one superhuman power which

1840

they should worship and invoke its blessings. (pp.158-

159.)

H. Moreover, - and this was pointed out by Chatterjee,

J., who was a member of the Full Bench – the conception

of Hindu jurists was not that the image of clay or stone

constituted the juristic person. The Smriti writers have

laid down that if an image is broken or lost another may

be substituted in its place; when so substituted it is not a

new personality but the same deity, and properties vested

in the lost or mutilated thakur become vested in the

substituted thakur. Thus, a dedication to an idol is really a

dedication to the deity who is ever-present and ever-

existent, the idol being no more than the visible image

through which the deity is supposed specially to manifest

itself by reason of the ceremony of consecreation. The

decision in Bhupati Smrititirtha v. Ramlal has been

followed by other High Courts in India, and it has been

held by the Allahabad High Court in Mohor Singh v. Het

Singh that a bequest to complete the building of a temple

which was commenced by the testator and to install and

maintain an idol therein was a valid bequest under the

Hindu law.( pp.162-163)

I. A donor can certainly create a trust for the worship

of an idol which is to be consecreated and established in

future. The same principle applies if the deity is such as is

worshipped periodically like Durga, and has no permanent

image. The dedication of property for carrying on such

periodical worship is perfectly valid, although every year

a new clay image is prepared which is thrown into the

river after the Puja is over. (p.163)

1841

J. Where there is no deed, no question of construction

arises, and the validity or otherwise of the endowment

would have to be determined entirely on circumstantial

evidence. In Ram Ratan Lal v. Kashnath Tewari, the Patna

High Court has discussed the relevant considerations and

the evidence needed for deciding the question how far the

endowment is illusory. (p.167)

K. Reference may also be made to the judgments of the

Supreme Court in Idol of Thakurji Shri Govind Deoji

Maharaj (supra); Bishwanath and Anr. Vs. Shri

Thakur Radhaballabhji (supra); Jogendra Nath Naskar

(supra); Kalanka Devi Sansthan Vs. Maharashtra

Revenue Tribunal (supra); Official Trustee of West

Bengal Vs. C.I.T., West Bengal (supra); Dr M. Ismail

Faruqui (supra); and Ram Jankijee Deities (supra).

L. Plaintiffs in paragraphs 19, 20 and 21 have

specifically pleaded and given the reasons why the place

believed to be the birth place of Lord Sri Rama itself is a

deity. That a ‘place’ can be an object of worship is now

beyond doubt on account of the decisions of the Supreme

Court in Faruqi’s case and in Ram Janki’s case – (1999) 5

SCC p.50 also Mukherjea pp 158-9 quoted supra.

M. The extracts quoted above from Mukherjea’s

treatise clearly brings out the distinction between a

physical object, namely, an idol and a deity, though the

two are used occasionally as inter-changeable expressions.

What emerges is that it is a mistake to consider that there

must be a physical object, namely, an idol before there can

be a deity.

N. There can be no doubt now that a deity is a juristic

1842

person and can sue through a next friend appointed by

courts - see AIR 1967 SC 1044 . The present plaintiff 3

Sri.Trilokinath Pandey was appointed by the order of the

Hon’ble Supreme Court.

O. Issues Nos. 21 and 22 are also closely connected

and stand answered. It is made clear that the plaintiffs are

not claiming that the idols alleged to have been placed

under the dome in December, 1949 are the plaintiff

deities– the idols are for the benefit of the devotees.

1709. The case of defendant no.3 (Suit-4), i.e., Nirmohi

Akhara has been/is that the temple at Ram Chabutara belong to

Nirmohi Akhara since long, was its property including the idols.

It is not in dispute that Hindu idol, after its due consecration,

becomes a legal personality but in the case in hand, Nirmohi

Akhara, a religious endowment was managing the said temple

and worshipping the idol hence in any case it stood in the

capacity of Shebait of the said idol. The said status of Nirmohi

Akhara was never terminated at any point of time and therefore,

no suit on behalf of such an idol could have been filed by

ignoring defendant no.3 and that too in the absence of any

allegation of inaction or mal-action on the part of the Shebait i.e.

Nirmohi Akhara. In support Sri Verma also placed reliance on

Commissioner, Hindu Religious Endowments, Madras Vs. Sri

Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra)

and Kunwar Singh Vs. Sri Thakurji Mahraj, Birajman

Mandir Gauntia Majra Dhamipur, Pargana and Tahsil

Nawabganj, District Bareilly, 1992 (2) AWC 890.

1710. The pleadings, argument etc. over these issues require

us to consider the matter from two different angles:

(i) Whether plaintiff no.1 is a Deity in terms of Hindu

1843

Law. Its effect,

(ii) Plaintiff no.2 is a place and therefore, first of all it has

to be seen whether a place by itself can be a Deity and be

conferred status of legal person in the light of principles of

Hindu Law.

1711. If both these aspects about the Deities are decided in

affirmance only then we will have to consider whether there was

any Shebait of the said two plaintiffs and whether the plaintiff

no.3 has rightly filed the suit in question as their next friend.

1712. First we first propose to consider, though in brief, as to

how the idol worship came to exist, the concept form and the

foundation etc., in the light of available ancient Hindu scriptures

as also the judicial precedents.

1713. One of the oldest Aryan scripture i.e. the Rigveda

refers to the worship of natural powers like sun, water, air etc.

but according to Max Muller, “the religion of the Vedas knows

of no idol”. He (Muller) says that the worship of idols in India is

a secondary formation, a later degradation of the more primitive

worship of ideal gods. B.K.Mukherjea in Hindu Law of

Religious and Charitable Trusts (supra) on page 13 has said:

“There is a difference of opinion amongst scholars as to

whether the religion that is embodied in the Vedas was at

all polytheistic. A number of gods indeed are named, but

there are various passages in the Rigveda which expressly

declare that the various gods are only different names of

that “which is one”. Max Muller calls the religion,

“henotheism”. The gods to whom the hymns of the Rigveda

are addressed are idealised beings, who represent the

beneficient and radiant powers of nature, e.g., sun, air,

earth, sky, dawn, etc. But the Vedic seers had, from the

1844

beginning, a glimpse of the infinity behind these finite

forces, as is shown by the conception of 'Aditi' the mother

of the gods which, as Max Muller says, was the earliest

name invented to express the infinite.” (emphasis added)

1714. Similarly, about the existence of 'temple' or 'monastic

institution' in Vedic age, B.K. Mukherjea in Hindu Law of

Religious and Charitable Trusts (supra), on page 13 and 15

has said :

“It is difficult to say to what extent the charitable and

religious endowments as we see in modern times existed in

the early Vedic period. The earliest Vedic literature which

is known by the name of Samhitas throws very little light on

this point. It seems fairly certain that at this period there

were no temples for worship of idols as we find in

subsequent time, and an institution like the mutt or

monastery of later days was also unknown.”

“There is also no mention of monastic institution in the

Vedic literature. According to the Vedic Grihya Sutras,

which regulated the life of man, there were the institutions

of four Asramas prescribed for all persons belonging to the

twice born castes. Man's life was divided according to this

scheme into four Asramas or stages. The first stage was of

Brahmachari or student who was to live in the house of hi

preceptor and study the Vedas living a life of utmost

austerity and discipline. In the second stage he married

and became a householder or Grihastha and his duty was

to perform the religious and secular works that were

prescribed for this stage of life. In the third which was the

Banaprastha stage, he was to live the life of a recluse, and

in the last stage he became a Jati or ascetic.” (emphasis

1845

added)

1715. Sri B.K. Mukherjea's above observation has come

after his concurrence with the views of some historians at that

time and particularly Europeans that Aryans migrated to India

from elsewhere and Vedic literature is the scripture of Aryan

culture. This is evident from what the learned author in para

1.11, page 10, has observed with respect to Rigveda; “In the

Rigveda, which is the earliest record of Aryun culture....”

1716. In 'Development of Hindu Iconography' by Jitendra

Nath Banerjea (First Edition in 1941 and 5th Edition in 2002

published by Munshiram Manoharlal Publishers Pvt. Ltd.), the

learned author opines:

“The nature of the prehistoric remains just discussed

cannot be determined with certainty on account of the

absence of any literary data throwing clear light on them ;

but with the help of certain passages occurring in the

Rgveda, the earliest extant literature of the Indo-Aryans, it

is possible to offer a tentative explanation about some of

them. It may be observed, however, that in India, prior to

the advent of the Aryans, image-worship might have

been practised by her original settlers. But it is still a

matter of doubt and controversy when this was first

introduced among the Aryans who migrated into India.

From the beginning of the scientific method of Vedic

studies in India this question engaged the attention of

scholars.” (Page 42) (emphasis added)

1717. Thereafter, the learned author referred to the views of

Max Muller, who said that the Vedic religion knew of no idols

and it was a secondary formation. This has been reiterated by

H.H. Wilson and Macdonell. Banerjea, then has also referred to

1846

a contrary view expressed by Bollensen.

1718. Sri S.V. Venkateswara, after considering rival

opinions of several authorities on the subject, expressed his

opinion that Vedic evidence was not at all sufficient for

deciding whether gods were iconically represented in earlier

Vedic period or not. His later observations have been quoted by

J.N. Banerjea in The Development of Hindu Iconography

(supra) as under :

“In a later contribution (Rupam, Nos.42-4, 1930), he was

more definite, and he collected numerous additional

passages from the Rgveda and other Vedas in support of

his view ; he even used the term iconography in relation to

the representation of the Vedic deities. He assigned the

foremost place to the well-known verse in the Rgveda, IV.

24, 10, which was also noticed by Macdonell and others.

The latter thought that it was a late passage probably

containing an allusion to some concrete symbol of Indra. It

is : Ka imam dasabhirmamendram krinati dhenubhih I

Yada vrtrani jamghanadathainam me punardadat ('Who

will buy this my Indra for ten cows? When he has slam his

foes, he may give himback to me'). Venkateswara remarks

about the passage thus : “The context shows that there

were permanent images of Indra made and hired for what

was in probability an Indra festival, and there were

apparently images of Vrtra made for each occasion,

whence the plural Vrtrani to be slain by Indra.” With

regard to R.V., V. 52, 15, noticed above, Venkateswara

makes this significant observation, “ this passage is also

interesting in that it shows that there was no idol worship,

but that images were used as concrete representations of

1847

gods whose real form and existence were conceived as

different.” The existence of two forms of each god, one the

concrete and finite and the other the abstract and infinite,

is clear according to him in a Yajurveda passage (T.S., I. 7.

12; also A.V., VII. 31) which reads svaya tanva

tanumairayata ('with your own, i.e., real, body enter this

concrete body'). In his opinion, the image is regarded in

the Rgveda merely as a physical tenement of the real

form of the god, while in these texts we have two forms of

the god mentioned- that in the image being only an

apparent and evanescent form, and that in the universe

being the real and permanent form (sva tanuh). He finds

reference to the relationship of these forms, finite and

infinite, of the god even in the Rgveda (VII. 100, 6) which

speaks of Visnu's assumption of another, the finite form in

the battle with Vrtra, where he was a worthy companion of

Indra (yadanyarupah samithe babhutha) ; Indra, who used

Visnu as his vehicle (Visnvanusthitah), asked him to

expand into the infinite space (sakhe Visno vitaram

vikramasva) elbowing Vrtra out of existence till the latter

begged to be received into the body of Indra himself. From

this Venkateswara concluded that the belief was that the

finite cabined in a particular form was not cribbed or

confined by this fact but was capable of infinite expansion.

He finds distinct references to the fashioning of images in

such passages as R. V., VI. 28, 6 (asriram cit krnutha

supratikam i.e., 'make that which was an ugly mass a

beautiful image'); R.V., IV. 17, 4 (Indrasya karta

svapastamo bhut, i.e., 'the maker of Indra was a most

stalwart being, a most skilful workman'); casting of metal

1848

images is also referred to in the Rgveda and other Vedas in

such passages as R.V., VIII. 69, 12 (surmyam susiramiva,

i.e., 'like a hollow tube'), R.V., X. 184, 1 (Visnuryonim

kalpayatu tvasta rupani pimsatu 1 A sincatu

prajapatirdhata garbham dadhatu te, i.e., 'May Visnu make

the female organ fit ; may Tvasta fix the limbs ; may

Prajapati sprinkle ; may Dhata hold your embryo'), R.V., I.

32, 2 (Tvastasmai vajram svaryam tataksa, i.e., 'Tvasta

made the thunderbolt for Indra, which could be far flung'),

etc. He further finds references to temples (devagrhas) in

such passages as R.V., VII. 56, 14 (Sahasriyam damyam

bhagametam grhamedhiyam maruto jusadhvam, i.e., 'Oh!

Maruts accept this your portion offered at the temple'),

R.V., VII. 59, 10 (Grhamedhasa, i.e., the Maruts in the

houses are munificent), etc. Venkateswara thinks that this

inference from the passages is supported by the finds of

images of the storm gods in Babylonia. He even finds

allusion to processions of images in R.V., I. 10, 1 and III.

53, 5-6. “In the latest (Khila) Vedic texts, the goddess Sri is

represented as a golden antelope adorned with garlands of

silver and gold” (he obviously refers to the Sri Sukta in this

statement).” (Pages 45 – 47) (emphasis added)

1719. B.K. Mukherjea in Hindu Law of Religious and

Charitable Trusts (supra) refers to “Gautama's Dharmasuttra”

and says that there is some reference to idols but the age of the

work is unknown, and it does not specify any particular idol or

idols. It says that the gods that are popularly worshipped by the

Hindus at the present day are, for the most part, Pouranic

deities, descriptions of which occur in various Puranas. The

“Puranas” literally mean ancient legends constitute a class of

1849

epic literature, didactic in character, which deal with various

matters including cosmogony, the genealogies and exploits of

gods, sages and kings, accounts of the different Avatars or

incarnations of Vishnu, as well as the rites of worshipping gods

by prayers, fasting, votive offerings, pilgrimages, etc. On page

25 B.K. Mukherjea further says :

“ The Purans are sectarian, in the sense that some of them

extol the merits of worshiping Vishnu, while many prefer

Siva worship. The Upanishads which embody the

philosophical concept of the Vedas describe Brahman or

the Supreme Being as “that from which all things are born,

that by which when born they live and into which they enter

at death.” These creative, preservative and destructive

functions or aspects of the divinity constitute the Trinity of

the Puranas and are symbolised respectively by Brahma,

Vishnu and Siva. The Puranas say expressly that Brahma,

Vishnu and Siva though three in form really constitute one

entity and there is no difference amongst them except that

of attributes. The reason is that each of the functions of

creation, preservation and destruction implies the others

and contains the others in a latent form. The worship of

Brahma is not very popular, and I am not aware of any

temple being dedicated to this creative deity except one at

Pushkar, seven miles to the north-west of Ajmer in

Rajasthan. The images that are worshipped are generally

those of Siva or vishnu in their various forms or

manifestations. The worship of Sakti or the female

principle which is described as the consort of Siva in the

different forms of Durga, Kali etc. is also popular and is

the special feature of the Tantric system. Besides Siva,

1850

Vishnu and Durga, the other deities, who are generally

adored by the Hindus, are Ganesh and Surya (Sun), and

the numerous temples that adorn the various sacred places

of the Hindus are dedicated for the most part to one or

other of these five gods or Pancha Devata as they are

called.”

1720. It is said that the Vedic mythology was merely

elaborated in Puranas. In this regard, B.K. Mukherjea, on pages

152 and 153 Para 4.3B has observed “

“This is not wholly or even substantially true. The sources

of some of the legendary stories occurring in the Puranas

can, no doubt, be traced in the Vedas but it would not be

correct to say that the Pouranic gods were mere

reproductions of the Vedic gods. There is nothing in the

Vedas corresponding to the Pouranic Trinity of Brahma,

Vishnu and Siva. Brahma in the Vedic text signified the

Sun, or was a synonym of prayer. Vishnu in the Rigveda

occupied a rather subordinate position. He was also

identified with the Sun, and his three strides encompassing

the three spheres of existence, as suggestive of all

pervasiveness constituted the foundation of the Pouranic

legend of the three steps of Vishnu in his incarnation of the

“Dwarf.” Siva hardly appears as the name of any deity in

Vedic time. The expression “Siva” means propitious or

benignant. Rudra, one of the Vedic deities, was in all

probability, another name of Agni or fire, and the Puranas

identified Siva with Rudra. We hear very little of Ganapati

or Kartikeya in the Vedas. Kali, who is described in the

Puranas as a consort of Siva, was spoken of in

Mandukopanishad as one of the seven tongues of fire, while

1851

the name of “Uma” occurs in the Kenopanishad, where

she is described as a resplendent lady who gave lessons in

divine knowledge to the gods. Sri Krishna, who looms so

large in the Pouranic literature, is mentioned only as a

scholar and not as a deity in the Vedas, though many of the

legendary stories attributed to him in the Purans are

traceable to similar legends associated with Indra in the

Vedic literature.

It is not necessary for our present purpose to pursue these

discussions any further. Though the Puranas are by no

means uniform, the legends associated with the various

gods are fairly well known and have been the basis of a

considerable mass of poetic literature in later times. One

cardinal principle underlying idol worship you would

always bear in mind- and this has some bearing on the law

relating to gift of property to idols- that whichever god the

devotee might choose for purposes of worship and

whatever image he might set up and consecrate with that

object, the image represents the Supreme God and none

else. There is no superiority or inferiority amongst the

different gods. Siva, Vishnu, Ganapati or Surya is extolled,

each in its turn as the creator, preserver and supreme lord

of the universe. The image simply gives a name and form

to the formless God and the orthodox Hindu idea is that

conception of form is only for the benefit of the

worshipper and nothing else.” (emphasis added)

1721. Para 1.33 (page 26) of B.K. Mukherjea's Hindu Law

of Religious and Charitable Trusts (supra) says that different

images do not represent separate divinities; they are really

symbols of the one Supreme Being, and in whichever name and

1852

form the deity might be invoked, he is to the devotee the

Supreme god to whom all the functions of creation, preservation

and destruction are attributed. In worshipping the image the

Hindu purports to worship the Supreme Deity and none else.

The rationale of image worship is thus given in a verse which is

quoted by “Raghunandan”:

“fpUe;L;kf}rh;L; fuLdyL;k'kjhfj.k

lk/kdkuka fgukFkf; czgE.kh #idYiuk A^^

“It is for the benefit of the worshippers that there is

conception of images of Supreme Being which is bodiless,

has no attribute, which consists of pure spirit and has got

no second.”

1722. Some of the aspects of image worship have been

referred to by Sri P.N. Mishra, Advocate which we have already

quoted in extentio in para 1695 (A-J) which are also based on

the Hindu scriptures against which nothing has been placed by

the learned counsels appearing for pro-mosque parties and,

therefore, we have no reason to doubt correctness thereof.

1723. The next step is the building and consecration of

temples along with the establishment of idols worshipped in

Hindu religion, elaborate rites and ceremonies. It appears to

have been introduced by Brahminical writers. They have

elaborated the procedure, steps regarding building of temples,

consecration and purification of idols etc.

1724. A temple is the house of the deity and many of the

rules of construction of a temple are practically the same as are

prescribed for construction of a dwelling house, the additional

rules being laid down to ensure greater sanctity of the structure

that is meant for the abode of a deity. One who wants to built a

temple has got to select proper time for building with reference

1853

to astrological calculations. There are detailed rules relating to

selection of the site which include examination of the nature and

colour of the soil, its odour, taste, solidity, etc. After the site is

selected, it is ploughed up and seeds are sown in it. As soon as

the seeds germinate, the crop is allowed to be grazed over by

cows. The cardinal points are then to be ascertained for giving

this structure an auspicious aspect and there are rules to be

observed regarding the materials to be used and the location of

doors, windows, etc. The important religious ceremony is the

“Vastu Jaga” in honour of “Vastu Purusha” or “Vastu Debata”

who presides over dwelling house, with oblation of milk, rice

and sugar.

1725. A temple, in the original sense of the Latin word

'templum', meant a rectangular place marked out by the augur

for the purpose of his observations which were taken within a

rectangular tent and gave it meaning of a consecrated place or

building of rectangular shape 'inaugurated' by an augur. It may

be applied in this sense to the house of a God. In its primitive

sense 'templum' means a place marked off as a road to God. In

ancient Hindu Religious Texts, the word ^izklkn^ has been taken

to mean and denote 'temple'. In Matsya Purana, it is written:

^^,oeso iqjk.ks"kq rM+kxfof/k:P;rs]

dwiokihlq lokZlq rFkk iq"ifj.kh"kq pA

,"k,o fof/kn"V% izfr"Bklq rFkSo p]

eU=rLrq fo'ks"k% L;kr izlknks|kuHkwfe"kqAA

(The rules which are recognised for pratishtha and utsarga

of tanks, water reservoirs, etc., should be observed in the

case of garden and temples but with necessary variation in

mantras.)

1726. The foundation of temples and consecration of an

image in the temple are two different subjects. In Hindu system

1854

of worship, temple is not merely a place of idol, but is also a

place of worship. In 'Hindu temple' by Cramerish, it is said :

“The surface of the Earth, in traditional Indian

Cosmology, is regarded as demarcated by sunrise and

sunset, by the points where the sun apparently emerges

above and sinks below the horizon; by the East and West

and also by the North and South points. It is therefore,

represented by the ideogram or mandala of a square (F.N.

44- The square does not refer to the outline of the Earth). It

connects the four points established by the primary pairs of

opposites, the apparent sunrise and sunset points East and

West; South and North. The Earth is therefore called

'Caturbhrsti' four cornered (Rv. X. 58. 3) and is

symbolically shown as Prithvi-Mandala, whereas

considered in itself, the shape of the Earth is circular. (Rv.

X. 89. 4; S.B. VII. I. I. 37). The identification of the square

with the vedi is in shape only and not in size and belongs to

the symbolism of the Hindu temple. The vedi represents and

is levelled Earth, a place of sacrifice or worship: 'No part

of the ground should rise above it: for it was from there

that the God ascended to heaven' (S.B. III. I.I.I-2). The site,

the Earth should be even and firm for it is the starting

place of the ascent (S.B. VIII 5.2.16). The link between the

Earth and the end of the ascent stretches upwards into

space. The intermediate region (antriksa) from it also leads

downward and rests on Earth. In it the temple has its

elevation. The Vastupurusamandala, the temple diagram

and metaphysical plan is laid out on the firm and level

ground; it is the intellectual foundation of the building, a

forecast of its ascent and its projection on Earth.”

1855

1727. About the construction of the temple, it has been said:

^^d`Rok izHkwoa lhyyHkjkHkfUofuos'; pA

nsokr;rua dq;kZ|'ks/kekZfHko);sAA

b"VkiwrZsu yH;Urs;s yksdkLrku~ cqHkw"krkA

nsokukeky; dk;ksZ };eI;= n';rsAA

(On the land where, sufficient source of water is available,

beautiful gardens of flowers and fruits are also available

only there a founder should build a temple for the sake of

religion and fame. From building a temple one gets benefit

of both ishta and purta.)

1728. The Sanskrit word ^izklkn^ 'Prasad's origin is said as:

izd"kzs.k lnua lknua ok;fLeu~ l% izlkn%

(A building made of stones with mantras and other.)

1729. It was the ancient Indian tradition that ordinary

people's houses had no walls or pillars made of stones, or

puckka bricks. It was said:

f'kykdqM~ ; f'kyk LrEHka ujkoklsu;kst;sr u;kst;sr & ¼dkfedkxe½

1730. Stone-made structures were reserved for worship and

were known as mandir. With the lapse of time this restriction

was given up. There is a separate branch of Temple Architecture

for building temples. The shape of a temple must be like a man.

It is said:

izlkna iq#"ka eRok iwt;sr ea=foRreA

1731. A Book said to have been written by Maharajadhiraj

Bhoj Deo, i.e., “Samrangan Sutradhar” is considered to be

classic book of architecture on temples. The Mareechi Samhita

provides the Code for the construction of a temple:

“The Garbagruha (Sanctum) is so constructed as to

resemble a human body in its vertical form. The entire

structure from the base to the top (called Vasstu Purusha)

is divided into six units, corresponding to six parts to the

1856

human body. Mareechi Samhita classifies the types of

vimanas according to rituals, forms and materials used.

Interestingly, the ritual-classification is based on the

builder's mental attitude, health, success (pushti, shanthi,

jayadam, adbhutam).

There are four types of temple architecture, the

Nagara (North Indian), the Dravida (South Indian), the

Vesara (a combination of both) and Kadamba Nagara

(Pattadakal temples . . . . . Chalukyan style). There is no

difference between Saiva and Vaishnava temples either in

style or plan or form. All temples consist of the following

integral parts, arranged in various forms, depending upon

the era to which they belong to.

The principal part, the actual temple, is called

Vimana and it includes the shrine and the spire. The

mantapas or porches precede the door leading to the inner

shrine. Mahadwara or main gateway is the principal

feature at he entrance to the quadrangular enclosures that

surround the temples.”

1732. In “Law of Hindu Religious Endowments” by Ghosh,

he stressed on the origin of temple:

"He has stated that during the Vedic times, offering

were made to various deities by placing them on the fire

which was named Hutaraha or the conveyor of offerings.

The Rig Veda speaks of the fire as carrying the Homa

articles after making them fragrant to the Gods. He has

also pointed out that this type of worship was common

among Semitic races and also in Rome.

This was in the primitive stages of civilization. At

later stages elaborate and complicated divination,

1857

propitiation, sacrifice, prayer and other rites and

ceremonies developed in Hinduism. This was not confined

to Hinduism only. Parallel situations obtained in

Shintoism, Confucianism, Roman, Greek slavic and

German religions also. Different orders of priestly

functionaries to perform different cultic acts came into

existence. Words, formulae and rites had to be

punctiliously pronounced and executed. Rituals in all their

varieties and with all their paraphernalia had to be

meticulously executed. The temple priests had to dedicate

their lives to the service of God by solemn vows. This was

the method of evolution of temple worship.

Out of the rituals for the establishment of

endowments for Hindu temples, two stand out prominently.

They are Pratishta and Sankalpa.”

1733. It has also been observed that the temples are also of

two kinds. Ganapathi Iyer in his “Law of Hindu Religious

Endowments” at page 214 said:

"Temples being the chief examples of Hindu religious

endowments, they are of two kinds. Svayambhua

Sthalams are temples in which the idol or deity is said to

have self-revealed, i.e. not established by man. The other is

Pratishta Sthalams, namely, temples in which the deity is

established newly by observing certain set of rules (page

206). The images are of kinds; Lekhya consisting of

pictures, paintings on walls, canvas or vessels and (2)

chiselled figures of wood or stone. Lepya may be of two

kinds (1) moulded figures of clay, (2) metallic figures cast

in moulds (page 210). The place in which temples have to

be built and the directions in which the images are to be

1858

placed are also mentioned in the book."

1734. About the description and kinds of images, B.K.

Mukherjea's Hindu Law of Religious and Charitable Trusts

(supra), page 154 para 4.5 says:

“4.5. Images-their descriptions.- Image, according to

Hindu autho-rities, are of two kinds: the first is known as

Sayambhu or self-existent or self-revealed, while the

other is Pratisthita or established. The Padma Puran

says :”The image of Hari (God) prepared of stone, earth,

wood, metal or the like and established according to the

rites laid down in the Vedas, Smritis and Tantras is called

the established; ….......where the self possessed Vishnu

has placed himself on earth in stone or wood for the

benefit of mankind, that is styled the self-revealed.” A

Sayambhu or self-revealed image is a product of nature, it

is Anadi or without any beginning and the worshippers

simply discover its existence. Such image does not require

consecration of Pratistha. All artificial or man-made

images require consecration. An image according to

matsya Purana may properly be made of gold, silver,

copper, iron, brass or bell metal or any kind of gem, stone

or wood, conch shell, crystal or even earth.

Some persons worship images painted on wall or canvas,

says the Brihata Purana and some worship the

spheroidical stones known as Salgram. Generally speaking,

the Pouranic writers classify artificial images under two

heads; viz. (1) Lepya and (2) Lekhya. Lepya images are

moulded figures of metal or clay, while Lekhyas denote all

kinds of pictorial images including chiselled figures of

wood or stone not made by moulds. In the case of Goswami

1859

Geeridhariji v Ramanlalji which went up to the Privy

Council, the subject matter of dispute was the pictorial

image of the head of the Ballavacharya Sect and not of any

deity. Images again may be permanent or temporary.

Temporary images which are set up for periodical Pujas

like Durga, Saraswati, etc. are generally made of clay and

are immersed in a river or tank after the Puja is over.”

1735. Worship of idol i.e., the procedure aspect, has been

discussed in para 4.7 (page 156) of B.K. Mukherjea's Hindu

Law of Religious and Charitable Trusts (supra) as under :

“4.7. Worship of the idol.- After a deity is installed, it

should be worshipped daily according to Hindu Sastra.

The person founding a deity becomes morally responsible

for the worship of the deity even if no property is dedicated

to it. This responsibility is always carried out by a pious

Hindu ......... The daily worship of a consecrated image

includes the sweeping of the temple, the process of smear-

ing, the removal of the previous day's offerings of flowers,

the presentation of fresh flowers, the respectful oblation of

rice with sweets and water and other practices. “The deity

in short is conceived of as a living being and is treated in

the same way as the master of the house would be treated

by his humble servant. The daily routine of life is gone

through, with minute accuracy, the vivified image is

regaled with necessaries and luxuries of life in due

succession even to the changing of clothes, the offering of

cooked and uncooked food and the retirement to rest.”

(emphasis added)

1736. Existence of idol is not a necessary condition

precedent for a temple. Para 4.10A [page 158] of B.K.

1860

Mukherjea's Hindu Law of Religious and Charitable Trusts

(supra) says:

“While usually an idol is instituted in a temple, it does not

appear to be an essential condition of a temple as such. In

an Andhra case, it was held that to constitute a temple, it

is enough if it is a place of public religious worship and

if the people believe in its religious efficacy, irrespective

of the fact whether there is an idol or a structure or

other paraphernalia. It is enough if the devotees or the

pilgrims feel that there is one superhuman power which

they should worship and invoke its blessings. However, in

almost all cases the temple does possess an

idol.”(emphasis added)

1737. We may notice at this stage that in Mulla's Hindu

Law, 15th Edn., page 527, it is said that a temple is not a

juridical person, so no suit relating to the temple property can be

instituted in the name of the temple. It refers to a decision of

Lahore High Court in Thakardwara Sheru Mal Vs. Ishar Das

AIR 1928 Lah. 375 questioning if the temple has no idol in

whom the property shall vest.

1738. We, however, do not find that the above wide

proposition can be said to be a correct law in presenti. A temple

answering the requisites of Hindu religious endowment may be

a juridical person and if that being so not only it can sue or

being sued but it also entitled to hold property. It would be

suffice to mention at this stage that a detailed discussion in the

light of judicial precedents would follow hereafter and,

therefore, we are not straightway giving any authority on this

aspect just now as the matter would be clear from our

subsequent discussion.

1861

1739. The Apex Court in Guruvayur Devasom Managing

Committee Vs. C.K. Rajan (Supra) in para 40 said, "As a

Hindu temple is a juristic person ....". It also refers to Section 92

C.P.C. observing that it seeks to protect such juristic person and

therefore power under Article 226 or 32 could also be taken

recourse to.

1740. In T.R.K. Ramaswami Servai Vs. H.R.E. Madras

(supra), it was observed:

“The presence of an idol though an invariable feature of

Hindu temples is not a legal requisite. If the public or a

section of the public consider that there is Divine presence

in a particular place, they are likely to be recipients of the

bounty or blessings of God, then they are essential features

of a temple.”

1741. In Venkataramana Moorthy Vs. Sri Rama

Mandhiram (1964) 2 An.WR 457, it was held that to constitute

a temple, it is enough if it is a place of public religious worship

and the people believe in its religious efficacy, irrespective of

the fact there is no idol or structure or other paraphernalia. The

Madras High Court reiterated the above view in T.V.

Durairajulu Naidu Vs. Commissioner (supra) observing that

for an institution to be a temple, it is not necessary that there

should be Dhwajasthambam, prakaram, hundi or collection of

Kanikkai, utsava idols and utsavams. A place which creates a

sense of reverence in the belief that God resides there or an

edifice devoted to divine worship is a temple. It was also held

that the presence of idol is not a necessary ingredient to make an

institution a temple.

1742. Relying upon several precedents, including a Supreme

Court decision, it has however been held in Adangi Nageswara

1862

Rao Vs. Sri Ankamma Devatha Temple (supra) in para 6: "To

constitute a temple, it is enough if it is a place of public

religious worship and if the people believe in its religious

efficacy irrespective of the fact whether there is an Idol or a

structure or other paraphernalia"; it was further observed in para

8 (last passage) that the fact that the temple has ceased to exist

or ceased to be used as a place of religious worship either before

or after the commencement of the Act under consideration, is

absolutely of no consequence.

1743. Even when an image is broken or lost and is

substituted by another, it is not a new personality but the same

'Deity' and in this regard reference be had to page 162 which

says :

“the Smriti writers have laid down that if an image is

broken or lost another may be substituted in its place;

when so substituted it is not a new personality but the same

deity, and properties vested in the lost or mutilated thakur

become vested in the substituted thakur. Thus, a dedication

to an idol is really a dedication to the deity who is ever-

present and ever-existent, the idol being no more than the

visible image through which the deity is supposed specially

to manifest itself by reason of the ceremony of

consecration.”

1744. Then there are temporary images, i.e., the images and

deities prepared and destroyed periodically after worship, for

example, Ganesha's image is prepared during Ganesh Chaturthi

and after the festivities are over, the image is drowned in a holy

river or in places like Maharashtra (Bombay) in the sea.

Similarly, the images of Durga, Kali and other Devatas are also

worshipped as temporary images during certain periods.

1863

1745. A question arose as to whether there can be dedication

of property to such deity, an image whereof has been created

temporarily. The Calcutta High Court in Purnachandra

Chakrabarty Vs. Kaliopada Roy AIR 1942 Cal. 386 and Asita

Mohan Vs. Nivode Mohan AIR 1917 Cal 292 held that bequest

made for worship of a deity by the name of Sarat Kali, which is

the name of Goddess Durga and worshipped only once in a year

and for whom there is no permanent image was valid. In fact a

Full Bench of Calcutta High Court earlier took the view in

Bhupati Nath Vs. Ram Lal (supra) that if a gift in favour of the

deity whose image has to be prepared and destroyed periodically

is valid, there is no reason why a gift in favour of a deity whose

image is to be prepared once for all, except for any reason for

reconstruction coming to pass, should be invalid. According to

Hindu scriptures, the God, by whatever name adored, is ever

existent and whether a particular image did or not did not exist

at a particular time was not material. Temporary images are

normally not consecrated images though Ganapathi Iyer in his

"Hindu Law of Endowment" has said that even in the case of

temporary images, consecration is observed but normally

consecration or Pratishta is done according to the texts only for

images in temples. But that does not make the unconsecrated

temporary images less sacred.

1746. There is another aspect. When there is a defilement,

Punah-pratishthan (re-consecration of images in temples) has to

be observed. The Brahmapurana says that “when a image is

broken into two or is reduced to particles, is burnt, is removed

from its pedestal, is insulted, had ceased to be worshipped, is

touched by beasts like donkeys or falls on impure ground or is

worshipped with mantras of other deities or is rendered impure

1864

by the touch of outcasts and the like-in these then contingencies,

God ceases to dwell therein.

1747. Then comes Chala and Sthira Vigrah. There are two

forms of installation of idols in temples. The movable form is

called Chala and the stationary form is called Sthira. In most of

the consecrated temples, idols are found in both the forms. The

Sthira idol should not be moved while Chala idol which is also

called Utsava is to be taken out in procession etc. In the context

of forms of idols besides the man made images which consist of

pictures, paintings and chiselled figures of wood, stone etc., the

another form of such idols, which is natural, are stones found in

hills, river-beds or streams. One of such black stone is known as

Saaligram and another as Lingam. They are not ordinary stones.

The black Saaligraam stone symbolises Vishnu. Lingam

represents Siva. There is another kind of Lingam, i.e., Spatika

Linga, a white tiny crystal made of pure quartz. It is considered

to be best representation of the Nirguna Brahman, attributeless

all-pervading Paramatma. Then there are Panchamukha Lingas

which are found in Nepal and Jambukeswaram in Tamil Nadu

and Aihole in Western India. These stones etc. are a form of

Chal Vigraha.

1748. In the context of the above, the concept of 'Deity' and

'juristic personality' in Hindu Law has to be considered to find

out whether plaintiffs no.1 and 2 are "juridical persons".

1749. In legal terminology, the term 'person' normally

signifies a human being. It is Human Being's personality which

may possess the characteristics belong particularly to mankind,

i.e., power of thought, speech and choice. In legal terminology,

however, the concept of person or personality is not confined

with the ordinary concept. Law is concerned basically with

1865

rights and duties, both of which involves the notion of choice.

They will naturally, under any system of law, be held to inhere

primarily in those Being which enjoy the ability to choose, i.e.,

Human Beings. In law, the persons, who are not man are also

sometimes treated as person. Well renowned Jurist 'Salmond'

has sought to describe the word 'person' as: “persons are the

substances of which rights and duties are the attributes.

1750. In legal theory a person is any Being whom law

regards as capable of rights or duties. The persons, so defined,

may be placed in two categories; (a) natural person, and (b)

legal person. Obviously a natural person is a human being.

Legal person means Beings, real or imaginary, who for the

purpose of legal reasoning are treated in greater or lessor degree

in the same way as Human Beings. Legal persons commonalty

and loosely are also sometimes termed as fictitious person,

juristic person, artificial person or moral person. In this

category, we may place a joint stock company, a statutory or

local body and in Hindu law, an 'Idol'.

1751. For our purposes, we need not to discuss in detail the

concept of “natural person”, but confine ourselves to the term

“legal person”. A legal person is any subject-matter other than a

human being to which the law attributes personality. This

extension, for good and sufficient reasons, of the conception of

personality beyond the class of human being is one of the most

noteworthy feat of the legal imagination. The law, in creating

legal persons, always does so by personifying some real thing.

The thing personified may be termed the corpus of the legal

person so created, it is the body into which the law infuses the

animus of a fictitious personality. “Salmond on

Jurisprudence” Twelfth Edition by F.J. Fitzgerald, on page

1866

306, says:

“Although all legal personality involves

personification, the converse is not true. Legal personality

is a definite legal conception; personification, as such, is a

mere artifice of speech devised for compendious

expression.”

1752. Serious objection has been raised with the concept of

juristic personality though not in the context of idol but in the

context of place, inasmuch as, it is contended that everything, as

believed by any person, may not be given a legal status in order

to confer certain rights and privileges upon him. It is said that

like a human being it is conceived in Hindu Shastras that a

Deity shall be taken care of in the same manner as that a natural

person, for example arrangement of food, cloth, sleep etc. As a

matter of fact, however it does not actually and cannot actually

happen for the reason that an idol, made of some kind of

substance or material, cannot infuse life for all the said purpose.

It is only the perception and religious belief. Like a natural

person, a Deity cannot claim citizenship under the Constitution

of India, cannot participate in election either by contesting or by

exercising the right of vote and so on.

1753. The above concept obviously is well embedded in the

concept of Hindu Dharma. The form of observance of Dharma

vide Hindu scriptures which also provides the procedure of

worship in the form of Yagya. The Hindu scriptures also contain

the procedure of worship in the form of "Yagya", sacrifices by

chanting Mantras etc. and for the said purpose the existence of

idol or temple may or may not be necessary.

1754. The Apex Court recognised the Hindu belief that

worship consists of four forms of which idol worship is one

1867

such form. In A.S. Narayana Deekshitulu Vs. State of Andhra

Pradesh (supra), the Court observed that mode of worship

varies among persons of different faith. It is an assimilation of

the individual soul with the infinite. For its attainment diverse

views and theories have been propounded and one of them is

idol worship. In fact, the word "Dharma", which is normally

read and misunderstood identifying the word "religion", has a

different concept in Hindu vedic literature. According to

"Chhandogyopanishad":

^^=;ks /keZ LdU/kk;Kt/;;ua nkufefr izFkeLri ,osfr f}rh;ksa

czg~ekpk;kZpk;Z dqyoklh rrh;ksa R;UrekRekekpk;Zdqyolkn;u~A

loZ ,rs iq.;yksdk HkofUr czg~elaLFkks erRoesfrA**

There are three branches of Dharma 1. Yagna, study

and donation ¼xgLFk/keZ½ 2. Tapsaya ¼rkil/keZ½ 3. Brihcharitya

(living in the company of Acharya)."

However, according to "Vaisheshik":

^^vFkkrks /keZ O;k[;kLe;ke:A

;rks;qn;fu: Js;: lflf): l/keZ:AA**

(Dharma is that from which enjoyment ¼vkuUn½ and

Nishreyas is achieved.)

The "Manusmriti", defines "Dharma" as under:

^^osn: Lefr: lnkpkj: LoLFk p fiz;ekReu:A

,rPprqfoZ?ka izkgzq: lk{k)eZL; u{k.ke~AA**

(Shruti, Smriti, Sadachar and satisfaction of one's soul are

the four features of Dharma.)

1755. In A. S. Narayana Deekshitulu (supra), the Apex

Court observed that the basis of Hindu Dharma is two fold, first

is the Vedas and the second are Agamas. Vedas, in turn, consist

of four texts, namely, Samhitas, Brahmanas, Aranyakas and

Upanishads. Samhitas are the collections of mantras. Brahmans

explain the practical aspects of the rituals as well as their

1868

meanings. They explain the application of the mantras and the

deeper meanings of the rituals. Aranyakas go deeper into the

mystic meaning of the rituals, and Upanishads present the

philosophy of Vedas. In paras 95 to 100 of the judgment the

Court said:

“95. The basis of Hindu Dharma is two-fold. The

first is the Vedas and the second are the Agamas. Vedas, in

turn, consist of four texts, namely Samhitas, Bramhanas,

Aranyakas and Upnishads.

96. Samhitas are the collections of mantras,

bramhans explain the practical aspects of the rituals as

well as their meanings. They explain the application of the

mantras and the deeper meanings of the rituals. Aranyakas

go deeper into the mystic meanings of the rituals, and

Upnishads present the philosophy of the Vedas.

97. From the point of view of content, they are

viewed as Karma Kanda (sacrificial portion) and Jnana

Kanda which explain in the philosophical portion. The

major portion of the Vedic literature enunciates the Vedic

sacrifices or the rituals which inevitably culminate in the

philosophy of the Upanishads. That is why the Upanishads

are called Vedantha or culmination of the Vedas.

98. The essence of the Vedic religion lies in Vedic

sacrifices which not only purify the mind and the heart of

those participate in the sacrifices but also reveal the true

and unfragmented nature of the Karman (Action).

Erroneously, Western, scholars explained the Vedic

sacrifice in terms of either sympathetic magic or an act of

offering the fire to God emulating the mundane act of

offering gifts. Thus, for them Vedic religion is a primitive

1869

religion and Vedic Gods are simply representing insentient

departments of Nature; but it is not so. On the contrary, the

term used for Vedic Gods is “Deva” which literally means

“the shining ones.” The adorable ones-bestowing grace on

the worshippers. The root Div also means that Devas are

the embodiment of unfragmented consciousness, which is

ultimately one and non dual. Likewise, the Vedic sacrifice

is an act of re-enactment of the cosmic creation; in our

mundane life, our life of action is simply a life of

fragmented acts. This is because of Raga Dvesha whereby

the perception is limited. The fragmented acts emanate

from our deep rooted attraction and hatefulness. The Vedic

sacrifice moves towards “Poorna”, i.e., plenitude and thus

overcoming the problems of fragmented action in our lives.

Onwards, the seeker moves towards the knowledge of self

or the Brahaman. So many Upasanas are taught in the

Vedas but not elaborated. The Agams have elaborated

these Upasanas such as Madhu Vidya and Dahra Vidya.

99. Upanishads speak of Para Vidya and Apara

Vidya. Apara Vidya deals with Jnana through various

methods. Agams explain these Para Vidyas. The agamic

texts contain four parts, namely, Vidya Pada, Kriya Pada,

Charya Pada and Yoga Pada.

100. Each text of the Agams has the first portion,

called 'Samhita' which contains the four parts namely the

Vidya Pada, Kriya Pada, Charya Pada and Yoga Pada.

Vidya Pada offers an elaborate enunciation of the

philosophy, whereas Kriya Pada deals elaborately with act

of worship. Worship is viewed as Samurta Archana. In

other words, the God are endowed with from and this form

1870

of worship culminates into Amurta or Nishkala Archana by

which one worships and realises the formless. These are

the steps to be treated upon one after another.”

1756. In Acharya Jagadishwarananda Avadhuta Vs.

Commissioner of Police AIR 1990 Cal. 336, the Court observed

that according to Hindu concept, the idea of religion is relating

to God and form of His worship which in short is called as

religion. Swami Vivekananda in "Complete Works", Vol. 2,

page 396 said:

"Religion is realization; not talk, nor doctrine, nor

theories... It is being and becoming, not hearing and

acknowledging; it is the whole soul becoming changed into

what it believes. That is religion."

1757. Religion, therefore, is a process which has two sides;

from one point of view, it is a state of belief and feeling, and in

a word "spiritual disposition"; from another point of view it is

an expression of the subjective disposition in appropriate acts.

Both aspects are essential to the nature of religion and they act

and react on one another in the process of spiritual experience.

The expression of belief and faith forms the worship and for this

purpose it may take several aspects. Idol, deity, temple, religious

endowments etc. are some of those objects through which the

divine presence is felt, experienced, believed and enjoyed for

fulfilment of one's wishes.

1758. God is omnipotent and omniscient. His presence is felt

not by reason of a particular form or image but by reason of the

presence of the omnipotent. He is formless and shapeless.

According to Hindu belief, it is for the benefit of the

worshippers that there is manifestation in the images of the

Supreme Being. It is the human vision of the Lord of the Lords.

1871

One can say that it is the human concept of the Lord of Lords.

That is how a image and idol comes into picture. It may be

anything in the form of metal, like gold, silver, copper, etc. or a

simple piece of wood or stone may or may not be given a shape

by artisan so as to become an image or idol and divinity is

attributed to it.

1759. There are two forms of idols, one "Svayambhu" and

another "Pratishta". "Svayambhu" or self-revealed idol are

referred in Padma Purana (Uttara Khand) where the self

possessed Vishnu has placed himself on earth in stone or wood

for the benefit of mankind, that is styled as self-revealed. A

Svayambhu image does not require consecration. In this

category comes Saaligraam, certain stone forming Lingam,

Earth (places) etc. In respect to the idols, i.e., image formed of

wood, stone, metal etc. A procedure of securing divine spirit in

the image is normally followed as provided in the Hindu

scriptures that is called "consecration".

1760. In Ram Jankijee Deities (supra), the Court observed

that it is customary that the image is first carried to the Snan

Mandap and thereafter the founder utters the Sankalpa mantra

and upon completion thereof the images is given a bath with

holy water, ghee, dahi, honey and rose water. Thereafter, the

oblation to the sacred fire by which the pran pratistha takes

places and eternal spirit is infused in that particular idol and the

image is then taken to the temple itself and the same is

thereafter formally dedicated to the deity.

1761. In Sri Venkataramana Devaru Vs. State of Mysore

(supra), Agamas are described as the ceremonial law dealing

with matters like construction of the temples, installation of

idols and conduct of worship. There are separate Agamas for the

1872

Saiva temples and Vaishanava temples. The important Saiva

Agamas are Kamikagama, Karnagama and Suprabathagama.

The principal Vaishanava Agamas are Vaikanasa and

Pancharathra. The purpose of this ritual came of be noticed by

the Apex Court in Seshammal Vs. State of T.N. AIR 1972 SC

1586. It is said that the rituals have twofold object; one is to

attract the lay worshippers to participate in the worship carried

on by the Priest or Archaka. It is believed when a congregation

of worshippers participate in the worship of a particular attitude,

aspiration and devotion is developed and confers great spiritual

merit. The second object is to preserve the image from

pollution, defilement and desecration. Regarding a dispute

arising as to whether Prana Pratishta of an idol installed in a

temple was properly performed, the Court held that when an

idol is installed, the presumption is that such ceremonies have

properly been performed.

1762. In Deoki Nandan (supra), the Court observed that no

particular kind of ceremony and its performance is necessary to

be shown to constitute or to demonstrate that there is a valid

dedication or Prana Pratishta.

1763. The question of asking of evidence relating to Prana

Pratishta ceremony is relevant only in the context of judging

whether a temple is a public temple or a private temple. An idol

gets conferred the spiritual and divine spirit if the believers or

the worshippers visit for its Darshan, Pooja as a matter of right

believing the existence of such divine presence and nothing

more is required. Senior Sankaracharya of Kanchi Kamakoti

Peeta in "Aspects of our Religion, Bhavan's Book University"

has made observations on the manner and effect of the

consecration as follows:

1873

"Before an idol or image is worshipped, a process of

divinising it is gone through. The image is made instinct

with God. This is known as the process of Prana-pratishta.

Every human being is a compendious expression of the

cosmos. Man is a microcosm of the universe. He is made of

the five physical elements, the pancha bhootas, which are

also the substance of the universe. God in His cosmic form,

inheres in the Pancha boothas, which are crystallised in

the human body and expressed as the five sense organs

each functioning in terms of those elements. Before an idol

or image is worshipped, it has to be consecrated. The

process of consecration is called as stated earlier Prana-

pratishta. The devotee first performs aatma pooja; that is,

he meditates on his inner aatman encased in his body. By

appropriate mantras he first purifies his body including his

pranas and his sense organs. The vital airs and the organs

of perception and activity animating him as the microcosm

of the universe which is the macrocosm are transferred by

gestures to the accompaniment of mantras on to the idol or

the image wherein the manifestation of the Supreme (the

ishta devata) is devoutly invoked. The following prayer is

uttered before the prana pratishta:

svaatmasamsttham ajam suddham tvaamadya

paramesvara aranyaamiva havyaasam moortau

aavaahayaam-yaham

'O Lord of the Worlds, you are unborn and

pure. You are in my heart. I invoke You in this

moorti. Make yourself visible to me in my

concentration even as the agni comes out by friction.'

Thereupon it becomes instinct with divinity and

1874

becomes fit for worship. After this is done the worshipper

does not consider it any longer as a material object. It

becomes God Himself. Then follow the sixteen items of

ritualistic worship which are offered with fervour and

devotion.”

1764. "Bhagavadgita" says "whatever may be the form in

which each devotee seeks to worship with faith, I make their faith

steadfast in that form alone."

1765. It is believed by Hindus that worship consists of four

forms of which idol worship is one of such form. Mode of

worship varies amongst persons of different faith. It is an

assimilation of the individual soul with the infinite. For its

attainment diverse views and theories have been propounded

and one of them is idol worship. Hindus believe that the

Supreme Being manifests himself with three aspects as Brahma,

the Creator, Vishnu, the Preserver and Shiva, the Destroyer.

Those who believe and are devoted to the worship of Vishnu are

called “Vaishnavas” and those who worship Shiva are called

“Shaivites”. Vaishnavas believe that God manifest himself in

different incarnations. In other words, manifesting himself in the

flesh which is also termed by Hindus as avatara, something

which is expressive, absolute and immaculate. Vaishnavas

believe in Deity 'Vishnu' who has manifested himself in 10

avatars. Further, according to Hindu belief, Vishnu as preserver

exists in five forms, viz., Para, Vyuha, Vibhava, Arca and

Antaryamin. Para is the transcendental form. Vibhav includes

the ten divine descends (avatars) and also thirty nine forms

which he takes from time to time. Arca represents God in the

form of idol, which though formless, takes this finite form to

show favour of His devotees. The form of Antaryamin is to

1875

remain within the self and control it by directing it to lead a

virtuous way of life in accordance with the residues of the deeds

done by it.

1766. The purpose of religious experience is to integrate

human life, socially, materially and morally. Worship is

certainly specifically religious and it is an attitude of mind

which is not compatible with science. Science does not worship.

It enquires, analyses, classifies and does sums. Religion is not

merely worship of God but knowledge of God, for if it does not

know its God then God is a figment of imagination and it

worships it knows not what. All honest religions necessarily

involve a strenuous effort to know the supreme reality and the

knowledge of God must involve all knowledge in its scope. It

can thus be said that religious experience is an internal

experience and the deity in Temple is supposed to provoke the

inner experience. Temple, therefore, forms an integral part of

Hindu religion and idol installed therein forms the main symbol

of religious worship manifesting the dignity of God. The Image

of Lord in a Temple after Pran Pratishtha is a centre of

reference, a symbol of the Great Consciousness whose

attainment is ultimately the pinnacle of religious experiences.

According to Hindu belief, worship of God is of four kinds, viz.,

Japa-chanting of Mantras; Home- giving oblation into fire;

Archana-worship of God in form of idol in temple; and Dhyana-

concentration of God alone. Of these four, Archana gained an

established form of worship in temple.

1767. The concept of conferring legal personality upon a

Hindu idol/Deity has undoubtedly been developed and in fact

established for the first time by the Courts of British India in

19th Century. With the expansion of East India Company

1876

towards ruling this country, it followed the policy of non-

interference with the personal laws of inhabitants and therefore

the subject within the reigning territory of East India Company

was allowed to be governed by their personal laws so long as

the same were not inconsistent with the enacted statutes

governing the East India Company and the subject under its

reigning arena. The British Parliament also followed the same

policy while enacting laws for Indian subcontinent under the

reign of East India Company by laying down that a dispute

between the parties belong to one particular religion may be

decided according to their personal laws. For example where

both the parties are Hindu, by the principles of Hindu Law and

where both the parties are Muslim according to the principles of

Muslim Law. No clear cut or uniform law was existing in a

matter where both the parties belong to different religions and

there the matter was left to be decided according to equity and

good conscience by the concerned Courts. To the extent the

matter was governed by statutory laws there was no problem as

the same was followed over and above the personal laws. It is

this policy which made it necessary for the judicial officers to

learn the personal laws of the inhabitants i.e. Hindu Law and

Muslim Law. No doubt, for better administration and to lay

down their policies which may enable the Britishers to continue

to rule for long, they studied and made several surveys etc.

about the local administration, customs, traditions etc. but due to

the requirement of knowledge of personal laws for deciding the

disputes, it became utmost necessary for the Judges of the

Courts to acquaint themselves with the two kinds of personal

laws of this country. It is in this context we find the foremost

name of Sir William Jones, the founder of Asiatic Society of

1877

Bengal who ventured in translation of several Hindu ancient

scriptures written in Sanskrit, into English. He was a Judge

appointed to the Supreme Court of Fort William, Calcutta and

came to India in the later part of 18th Century. The another well

known name in this regard is F.E.Pargitor who was also a Judge

of Calcutta High Court.

1768. The Britishers knew well and were fond of the system

of Roman Laws. According to them, Roman Law was the most

ancient, well drafted and planned system of law and therefore,

they could not conceive of existence of any earlier ancient

culture with well planned system of law having its own separate

identity and principles. With this frame of mind, they studied

ancient Hindu Law comparing it with Roman Law on each and

every aspect thereof, even if the two were distinct and

dissimilar, wherever possible, they compared it with Christianity

and the rules of Church followed in England. Some such work

was done by Col. Brook, West and Buhler and Sir Henry Maine.

One of such earliest identification of Hindu Religious

Endowment i.e. temple and idols with the corporate bodies as

known in England and the legal personality i.e. juridical persons

was made by West and Buhlor in their work "Hindu Law".

1769. In Vidyapurna Tirtha Swami Vs. Vidyanidhi Tirtha

Swami and others (supra) Honble Justice Subrahmania Ayyar

of Madras High Court said:

"It is to give due effect to such a sentiment,

widespread and deep-rooted as it has always been, with

reference to something not capable of holding property as

a natural person, that the laws of most countries have

sanctioned the creation of a fictitious person in the matter

as is implied in the felicitous observation made in the work

1878

already cited "Perhaps the oldest of all juristic persons is

the God, hero or the saint" (Pollock and Maitland's

History of English Law, Volume 1, 481).”

1770. One of the earlier cases in this regard came before the

Bombay High Court in Manohar Ganesh Tambekar & Ors.

Vs. Lakhmiram Govindram (supra). The question arose about

the title and use of the offerings made at the shrine or the temple

of Shri Ranchhod Raiji at Dakor. The defendants frequently

acted in contravention of the rules, set up a proprietary title to

the offerings made at the shrine, appropriated part of the

offerings to their own use, and refused to render an account of

the property held as trustee for the idol. The suit was filed with

the consent of the Advocate General under Section 539 CPC

(Act X of 1877). The High Court dealt with the relationship of

idol with such trustees and on pages 263-265 held:

“The Hindu law, like the roman law and those derived

from it, recognizes, not only corporate bodies with rights

of property vested in the corporation apart from its

individual members, but also the juridical persons or

subjects called foundations (West and Buhler, H.L.., 201,

185, 553, 555). A Hindu, who wishes to establish a

religious or charitable institution, may, according to his

law, express his purpose and endow it (West and Buhler,

H.L., 99, 197, 216), and the ruler will give effect to the

bounty, or at least protect it so far, at any rate, as it is

consistent with his own dharma or conceptions of morality

(West and Buhler, H.L., 33; Manu VIII, 41 ; Coleb, Dig.,

B.III, Ch. II, T.28). A trust is not required for this purpose:

the necessity of a trust in such a case is indeed a

peculiarity and a modern peculiarity of the English law

1879

(Spence Eq. Juris., 440 ; Sav. Syst., s. 88). In early times a

gift placed, as it was expressed, “ on the altar of God”

sufficed to convey to the church the lands thus dedicated

(See Elton's Ten. of Kent, 17, 18). Under the Roman law of

pre-Christian ages such dedications were allowed only to

specified national deities [W. & B., H.L., 185 (b) ; Ulpain

Fr. XXII, s. 6. They were thus placed extra commercium.

Sav. Syst., sec. 88 (c c)]. After Christianity had become the

religion of the empire, dedications to particular churches

or for the foundation of churches and of religious and

charitable institutions were much encouraged (Sav. Syst.,

sec. 88 ; comp. W. & B., 197). The officials of the church

were empowered specially to watch over the administration

of the funds and estates thus dedicated to pious uses (Sav.

Syst., sec.88), but the immediate beneficiary was

conceived as a personified realization of the church

hospital or fund for ransoming prisoners from captivity

(Sav. Syst., sec. 88). Such a practical realism is not

confined to the sphere of law; it is made use of even by

merchants in their accounts, and by furnishing an ideal

centre for an institution to which the necessary human

attributes are ascribed- Dhadphale v. Gurav (I.L.R., 6

Bom., 122)- it makes the application of the ordinary rules

of law easy as in the case of an infant or a lunatic (Sav.

Syst., sec. 90 ; comp. Kinlock v. Secretary of State for India

in Council, L.R., 15 Ch. Div., at p. 8). Property dedicated

to a pious purpose is, by the Hindu as by the Roman law,

placed extra commercium, (W & B., H.L., 185, 197) with

similar practical savings as to sales of superfluous articles

for the payment of debts and plainly necessary purposes

1880

(See Cod. Lib. I, Tit. 2, Fr. 21 ; W. & B., H.L., 555, 557.

See also Rupa Jagset v. Krishnaji Govind, I.L.R., 9

Bom., p. 169). Mr. Macpherson admitted for the

defendants in this case that they could not sell the lands

bestowed on the idol Shri Ranchhod Raiji. This

restriction is like the one by which the Emperor forbade the

alienation of dedicated lands under any circumstances

(Vyav. May., Chap. IV, S. VII, p.23 ; Nov. 120, cap., 10). It

is consistent with the grants having been made to the

juridical person symbolized or personified in the idol at

Dakor. It is not consistent with this juridical person's being

conceived as a mere slave or property of the shevaks whose

very title implied not ownership, but service of the god. It is

indeed a strange, if not wilful, confusion of thought by

which the defendants set up the Shri Ranchhod Raiji as a

deity for the purpose of inviting gifts and vouchsafing

blessings, but, as a mere block of stone, their property for

the purpose of their appropriating every gift laid at its feet.

But if there is a juridical person, the ideal embodiment of a

pious or benevolent idea as the centre of the foundation,

this artificial subject of rights is as capable of taking

offerings of cash and jewels as of land. Those who take

physical possession of the one as of the other kind of

property incur thereby a responsibility for its due

application to the purposes of the foundation-compare

Griffin v. Griffin (1 Such. & Lef., 352); Mulhallen v.

Marum (3 Dr. & War., 317) ; Aberdeen Town Council v.

Aberdeen University (L.R., 2 Ap. Cas., 544). They are

answerable as trustees even though they have not

consciously accepted a trust, and a remedy may be sought

1881

against them for mal-administration (comp. Ind. Trusts Act

II of 1882, ss. 88, 95) by a suit open to any one interested,

as under the Roman system in a like case by means of a

popularis actio.” (emphasis added)

1771. In Jogendra Nath Naskar (supra) the Apex Court

referred to both the aforesaid judgements of Bombay and

Madras High Court and also observed in para 6 that same view

has been expressed by the judicial committee in Maharanee

Shibessoureea Debia Vs. Mathooranath Acharjo, 13 MIA 270

and Prosanna Kumari Debya Vs. Golab Chand Baboo, LR 2

IA 145.

1772. In Prosanna Kumari Debya (supra) the judicial

committee observed:

“It is only in an ideal sense that property can be said to

belong to an idol and the possession and management must

in the nature of things be entrusted with some person as

shebait or manager. It would seem to follow that the person

so entrusted must of necessity be empowered to do

whatever may be required for the service of the idol and for

the benefit and preservation of its property at least to as

great a degree as the manager of an infant heir”-words

which seem to be almost on echo of what was said in

relation to a church in a judgment of the days of Edward I:

“A church is always under age and is to be treated as an

infant and it is not according to law that infants should be

disinherited by the negligence of their guardians or be

barred of an action in case they would complain of things

wrongfully done by their guardians while they are under

age' (Pollock and Maitland's 'History of English Law',

Volume 1, 483".

1882

1773. In Khetter Chunder Ghose Vs. Hari Das

Bundopadhya (supra) it was found that the household idol was

made over to relatives, owing to the family, whose idol it was,

being unable to carry on the worship on account of the paucity of

profits of the endowed lands, and it was held that the transfer

was justified in the interests of the idol. It was a proper and a

pious act. The Shebait being charged fundamentally with the duty

of seeing to the worship being carried on, and, having the

concurrence of the entire family to the transaction, did have

power to carry through the transaction “for the purpose of

performing its worship regularly through generation to

generation. The members of the family were thereby deprived of

no right of worship. The interests of worshippers and idol were

conserved. Their Lordships do not think that such cases form

any ground for the proposition that Hindu family idols are

property in the crude sense maintained, or that their

destruction, degradation or injury are within the power of

their custodian for the time being. Such ideas appear to be in

violation of the sanctity attached to the idol, whose legal entity

and rights as such the law of India has long recognised."

(emphasis added)

1774. In Khetter Chunder Ghose (supra) the Court also

held that sale of an idol is prohibited in Hindu Law though in

certain circumstances, gift of an idol is not prohibited. The

Court on page 559 observed as under:

“It is true that the Hindu law prohibits the sale of an idol

(see the Padma Purana, Patalakhanda, Chapter 79), and

also the partition of it (see Dayabhaga, Chapter VI, s. II,

26), though when there are several idols, partition is

recognised by custom (see West and Buhler's Digest of

1883

Hindu Law, 2nd edition, page 396). But there is no

absolute prohibition against the gift of an idol. An idol is

not mentioned as an unfit subject of gift by Hindu lawyers

in their enumeration of what are, and what are not, fit

subjects of gift (see Colebrooke's Digest, Book II, Chapter

IV); but on the contrary the gift of an idol under certain

circumstances is considered a laudable act (see the Varaha

Purana, Chapter 185; see also Hemadris, Chaturvarga

Chintamani, Danakhanda, Chapter II).

1775. In Avadh Kishore Dass v. Ram Gopal (supra),

Plaintiffs instituted a suit for replacement of the Mahants of a

temple. The suit was contested by the then Mahants on the

ground that the suit property was the personal property of the

Mahants, and not that of the temple. The suit was decreed by the

District Judge, and his decree was substantially affirmed by

High Court. Supreme Court accepted the findings, on the basis

of certain exhibits, that the suit property belong to the temple as

a juristic person:

“Properly constructed, this Wajibularz shows that

the entire revenue estate of village Bhawalpura vests in the

Temple or the Math as a juristic person.”; and “that the

entire property in suit is the absolute property of the

God, Thakurji as a juristic person”; and the result “No

extract from the revenue records to show that Bhumidhari

rights were granted not to the idol or the Temple as a

juristic person, but to the appellant personally.”

1776. The right of a Shebait to institute a suit in his own

name to recover property belonging to the deity was recognised

in Jagadindra Nath Vs. Hemanta Kumari, 31 Ind App 203 at

p.210.

1884

1777. In Bhupati Nath Smrititir the Bhattacharjee (supra)

in concurring judgment of Full Bench, Justice Mookerjee

observed that “The Hindu Law recognises dedications for the

establishment of the image of a deity and for the maintenance

and worship thereof. The property so dedicated to a pious

purpose is placed extra commercium …............It is immaterial

that the image of the deity has not been established before the

death of the testator or is periodically set up and destroyed in the

course of the year.”

1778. Justice Chatterjee also in the concurring judgment

(above) observed: “Shastri's Hindu Law page 420 : shews the

Hindu idea of the forms attributed to God for the convenience of

worship : a particular image may be insentient until

consecrated but the deity is not. If the image is broken or lost,

another may be substituted in its place and when so substituted it

is not a new personality but the same deity and properties

previously vested in the lost or mutilated Thacoor become vested

in the substituted Thacoor. A Hindu does not worship the

“idol” or the material body made of clay or gold or other

substance, as a mere glance at the mantras and prayers will

show. They will have the eternal spirit of the deity or certain

attributes of the same in a suggestive form which is used for

the convenience of contemplation as a mere symbol or

emblem. It is the incantation of the mantras peculiar to a

particular deity that causes the manifestation or presence of the

deity or, according to some, the gratification of the deity.”

(emphasis added)

1779. However, we find from the judgment of Hon'ble

Jenkins, C.J. in Bhupati Nath (supra) that he noticed a slightly

different view based on Saraswati's Hindu Law of Endowment

1885

on page 647 of the report but His Lordship declined to make any

final comment thereon. The report says :

“ In favour of this view we have the doctrine of Medhatithi

cited to us in the course of the argument that the primary

meaning of property and ownership is not applicable to

God, and the train of reasoning that is suggested by the

teaching of the Aditya Purana that the gods cease to reside

in images which are multilated, broken, burnt and so forth

(Sarswati's Hindu Law of Endowment, page 129).

But whatever may be the true view on this obscure

and complex question, this at least seems clear that the rule

which requires relinquishment should be to a sentient

person does not forbid the gift of property to trustees for a

religious purpose though that purpose cannot in strictness

be called a sentient person.”

1780. The real question considered by the Full Bench in

Bhupati Nath (supra) and decided unanimously was as under:

“The principle of Hindu Law, which invalidates a gift other

than to a sentient being capable of accepting it, does not

apply to a bequest to trustees for the establishment of an

image and the worship of a Hindu deity after the testator's

death, and does not make such a bequest void”

1781. In Rambrahma Chatterjee Vs. Kedar Nath Banerjee

AIR 1923 Cal 60 it was observed that a Hindu deity is treated in

many respects certainly individual.

1782. In Ananda Chandra Chakrabarti vs. Broja Lal

Singha and others 1923 Calcutta 142 it was held:

“ It is well-settled that dedication vests the property in the

idol, only when the founder has title. The ceremony

divests the proprietorship of the temple from the builder

1886

and vests it in the image, which by process of vivification

has acquired existence as a juridical personage.”

1783. Observing that Hindu deity is a living being and is

treated in the same way in Rambrahama Chatterji Vs. Kedar

Nath Banerji (supra) the Court said:

“We need not describe here in detail the normal type of

continued worship of a consecrated image—the sweeping

of the temple, the process of smearing, the removal of the

previous day's offering of flowers, the presentation of fresh

flowers the respectful oblation of rice with flowers and

water, and other like practices. It is sufficient to state that

the deity is, in short, conceived as a living being and is

treated in the same way as the master of the house would

be treated by his humble servant. The daily routine of like

is gone through with minute accuracy: the vivified image is

regaled with the necessaries and luxuries of life in due

succession even to the changing of clothes, the offering of

cooked and uncooked food, and the retirement to rest.”

1784. In Pramath Nath Vs. Pradyumna Kumar (supra) the

above observation of Hon'ble Mukherji J in Rambrahma

Chatterjee (supra) were approvingly quoted.

1785. In Tarit Bhusan Vs. Sri Iswar Sridhar Salagram

Shila Thakur AIR 1942 Cal 99 a Division Bench of Calcutta

High Court said that a Hindu idol although a juristic person but

this juristic person is of a peculiar type. It is conceived by

Hindus as a living being with its own interests apart from the

interests of its worshippers, and it is recognised as a juristic

person capable of being the subject of legal rights and duties but

only in an ideal sense. Pal J. at page 532 observed:

"Though an idol is thus recognised as a juristic person

1887

capable of suing and being sued, strictly speaking it has no

material interest of its own. The efficient subject of the

rights ascribed to an Idol must ultimately be some human

beings. It must be they who enjoy such rights and, if law

protects such rights, it is because of the existence of such

ultimate human concern. The Idol, as the juridical person

only affords the technical means of developing the juristic

relations between those ultimately interested in the

endowed property and the strangers. The so-called

interest of the Idol is merely an ideal interest very

different from the interest which an infant has in his

property. The introduction of the Idol and its recognition

as a juristic person are more a matter for the procedure

and the procedure in India recognises the Idol as having

a locus standi in judicio."

1786. In Parmanand Vs. Nihal Chand AIR 1938 PC 195 it

was held that where a property is dedicated to an idol for the

object of performing its puja and other necessary ceremonies the

person managing such property is only a shebait, idol being a

juristic person in Hindu Law capable of holding such

property. This decision has been followed by the Apex Court in

The Bihar State Board of Religious Trust Vs. Mahanth Sri

Biseshwar Das AIR 1971 SC 2057.

1787. In Mahant Ram Saroop Dasji Vs. S.P. Sahi (supra),

the effect of damage to the idol was considered and in para 10 of

the judgment, the Court observed:

“Further, it is difficult to visualise that a Hindu private

debutter will fail, for a deity is immortal. Even if the idol

gets broken or is lost or stolen, another image may be

consecrated and it cannot be said that the original object

1888

has ceased to exist.” (Para 10)

1788. In Narayan Bhagwantrao Gosavi Balajiwale (supra)

regarding the removal of the idol from one place to another, the

Court held:

“The case is an authority for the proposition that the idol

cannot be removed permanently to another place,

because that would be tantamount to establishing a new

temple. However, if the public agreed to a temporary

removal, it could be done for a valid reason.” (para 36)

1789. Holding Hindu idol as juristic entity the Apex Court in

Jogendra Nath Naskar (supra) in para 5 the Court said:

“5. It is well established by high authorities that a

Hindu idol is a juristic person in whom the dedicated

property vests.”

1790. In the context of above authorities the Apex Court in

Jogendra Nath Naskar (supra) explained that any Hindu idol

has a legal personality and is not the material image but it is like

to be treated as a "natural person" and said:

“Such ascription of legal personality to an idol must

however be incomplete unless it be linked to a natural

person with reference to the preservation and management

of the property and the provision of human guardians for

them variously designated in different parts of the

country.” (para 6)

“It should however be remembered that the juristic

person in the idol is not the material image, and it is an

exploded theory that the image itself develops into a legal

person as soon as it is consecrated and vivified by the Pran

Pratishta ceremony. It is not also correct that the supreme

being of which the idol is A symbol or image is the

1889

recipient and owner of the dedicated property. This is

clearly laid down in authoritative Sanskrit Texts. Thus, in

his Bhashya on the Purva Mimamsa, Adhyaya 9, Pada 1,

Sabara Swami states :

^^nsoxzkeksa] nso{ks=fefr] mipkjek=e~ A ;ks ;nfHkizsra fofu;ksDreZgfr]rRrL;

Loe~ A u p xzkea {ks=a ok ;FkkfHkizk;a fofu;qDrMsA rLekUu laizPnkrhfrA

nsoifjpkj dk.kka rq rrks HkwfrHkZofr] norkeqfn~n'i ;r~ R;Dre~ A^^

"Words such as ’Village of the Gods’, ’land of the

Gods’ are used in a figurative sense. That is property

which can be said to belong to a person, which he can

make use of as he desires. God however, does not make use

of the, village or lands, according to its desires". Likewise,

Medhathithi in commenting on the expression ’Devaswam’

in Manu, Chapter XI, Verse 26, writes:

^^nsokuqfN';] ;kxkfn fdz;kFkZ /kua ;nqRl”Va] rNsoLoe~ eq[;L;

LoLokfelcaU/kL;] nsokuk vlaHkokr~ A^^

"Property of the Gods, Devaswam, means whatever

is abandoned for Gods, for purposes of sacrifice and the

like, because ownership in the primary sense, as showing

the relationship between the owner and the property

owned, is impossible of application, to Gods". Thus,

according to the texts, the Gods have no beneficial

enjoyment of the properties, and they can be described as

their owners only in a figurative sense (Gaunartha). The

correct legal position is that the idol as representing and

embodying the spiritual purpose of the donor is the

juristic person recognised by law and in this juristic

person the dedicated property vests. As observed by Mr.

Justice B. K. Mukherjea:

"With regard to Debutter, the position seems to

be somewhat different. What is personified here, is

1890

not the entire property which is dedicated to the deity

but the deity itself which is the central part of the

foundation and stands as the material symbol and

embodiment of the pious purpose which the dedicator

has in view. "The dedication to deity", said Sir

Lawrence Jenkins in Bhupati v. Ramlal, 10 CLJ 355

at 369, "is nothing but a compendious expression of

the pious purpose for which the dedication is

designed". It is not only a compendious expression

but a material embodiment of the pious purpose and

though there is difficulty in holding that property can

reside in the aim or purpose itself, it would be quite

consistent with sound principles of Jurisprudence to

say that a material object which represents or

symbolises a particular purpose can be given the

status of a legal person, and regarded as owner of

the property which is dedicated to it."

The legal position is comparable in many respects to

the, development in Roman Law. So far as charitable

endowment is concerned Roman Law-as later developed

recognised two kinds of juristic persons. One was a

corporation or aggregate of persons which owed its juristic

personality to State sanction. A private person might make

over property by way of gift or legacy to a corporation

already in existence and might at the same time prescribe

the particular purpose for which the property was to be

employed e.g. feeding the poor, or giving relief to the poor

distressed. The recipient corporation would be in a

position of a trustee and would be legally bound to spend

the funds for the particular purpose. The other alternative

1891

was for the donor to create an institution or foundation

himself. This would be a new juristic person which

depended for its origin upon nothing else but the will of the

founder, provided it was directed to a charitable purpose.

The foundation would be the owner of the dedicated

property in the eye of law and the administrators would be

in the position of trustees bound to carry out the object of

the foundation. As observed by Sohm:

"During the later Empire--from the fifth

century onwards-foundations created by private

individuals came to be recognised as foundations in

the true legal sense, but only if they took the form of

a ipia cause’ (’piumcorpus’) i.e. were devoted to

’pious uses’, only in short, if they were charitable

institutions. Wherever a person dedicated property-

whether by gift inter vivos or by will--in favour of the

poor, or the sick, or prisoners, orphans, or aged

people, he thereby created ipso facto a new subject of

legal rights-the poor-house, the hospital, and so

forth-and the dedicated property became the sole

property of this new subject; it became the sole

property of the new juristic person whom the founder

had called into being. Roman law, however, took the

view that the endowments of charitable foundations

were a species of Church property. Piae causas were

subjected to the control of the Church, that is, of the

bishop or the ecclesiastical administrator, as the

case might be. A pia causa was regarded as an

ecclesiastical, and consequently, as a public

institution, and as such it shared that corporate

1892

capacity which belonged to all ecclesiastical

institutions by virtue of a general rule of law. A pia

causa did not require to have a juristic personality

expressly conferred upon it. According to Roman law

the act-whether a gift inter vivos or a testamentary

disposition-whereby the founder dedicated property

to charitable uses was sufficient, without more, to

constitute the pia cause a foundation in the legal

sense, to make it, in other words, a new subject of

legal rights".

We should, in this context, make a distinction

between the spiritual and the legal aspect of the Hindu

idol which is installed and worshipped. From the spiritual

standpoint the idol may be to the worshipper a symbol

(pratika) of the Supreme God-head intended to invoke a

sense of the vast and intimate reality, and suggesting the

essential truth of the Real that is beyond all name or form.

It is basic postulate of Hindu religion that different images

do not represent different divinities, they are really symbols

of One Supreme Spirit and in whichever name or form the

deity is invoked, the Hindu worshipper purports to worship

the Supreme Spirit and nothing else.

^^bUnz fe=a c#.ke~ vfXue~ vkgj~&

,da ln~ foizk ogq/kk onfUrA ^^ (Rig Veda I-164)

(They have spoken of Him as Agni, Mitra, Varuna,

Indra; the one Existence the sages speak of in many ways).

The Bhagavad Gita echoes this verse when it says:

^^ok;qj ;eksv fXcj o#.k% 'k'kkad

iztkifrl~ Roa izfirkeg'pA^^ (Chap. XI-39)

(Thou art Vayu and Yama, Agni, Varuna and Moon;

1893

Lord of creation art Thou, and Grandsire).

Samkara, the great philosopher, refers to the one

Reality, who, owing to the diversity or intellects

(matibheda) is conventionally spoken of (parikalpya) in

various ways as Brahma, Visnu and Mahesvara. It is

however possible that the founder of the endowment or the

worshipper may not conceive on this highest spiritual plane

but hold that the idol is the very embodiment of a personal

God, but that is not a matter with which the law is

concerned. Neither God nor any supernatural being could

be a person in law. But so far as the deity stands as the

representative and symbol of the particular purpose which

is indicated by the donor, it can figure as a legal person.

The true legal view is that in that capacity alone the

dedicated property vests in it.” (pages 558-560)

1791. It is thus well established by high authorities that a

Hindu idol is a "juristic person" in whom the dedicated property

vests. In Manohar Ganesh vs. Lakshmiram (supra) called the

Dakor temple case. West and Birdwood, JJ., state:

"The Hindu Law, like the Roman Law and those derived

from it, recognises not only incorporate bodies with rights

of property vested in the corporation part form its

individuals members but also juridical persons called

foundations. A Hindu who wishes to establish a religious or

charitable institution may according to his law express his

purpose and endow it and the ruler will give effect to the

bounty or at least, protect it so far at any rate as is

consistent with his own Dharma or conception of morality.

A trust is not required for the purpose; the necessity of a

trust in such a case is indeed a peculiarity and a modern

1894

peculiarity of the English Law. In early law a gift placed as

it was expressed on the alter of God, sufficed it to convey to

the Church the lands thus dedicated. It is consistent with

the grants having been made to the juridical person

symbolised or personified in the idol". The same view has

been expressed by the Madras High Court in Vidyapurna

Tirtha Swami Vs. Vidyanidhi Tirtha Swami, (1904) ILR 27

Mad 435, in which Mr. Justice Subramania Ayyar stated.

"It is to give due effect to such a sentiment,

widespread and deep-rooted as it has always been

with reference to something not capable of holding

property as a natural person, that the laws of most

countries have sanctioned the creation of a fictitious

person in the matter, as is implied in the felicitous

observation made in the work already cited "Perhaps

the oldest of all juristic persons is the God, hero or

the saint" (Pollock and Maitland's History of English

Law, Volume I, p.481.)

That the consecrated idol in a Hindu temple is a juridical

person has been expressly laid down in Manohar Ganesh's

case (supra), Which Mr. Prannath Saraswati, the author of

the Tagore Lectures on Endowments" rightly enough

speaks of as one ranking as the leading case on the subject,

and in which West J., discusses the whole matter with much

erudition. And in more than one case, the decision of the

Judicial Committee proceeds on precisely the same footing

(Maharancee Shibessouree Debia vs. Mothooranath

Acharjo, (1869-70) 13 Moo Ind App 270 (PC), and

Prosunno Kumari Debya vs. Golab Chand Baboo, (1874-

75) 2 Ind App 145 (PC). Such ascription of legal

1895

personality to an idol must however be incomplete unless it

be liked to a natural person with references to the

preservation and management of the property and the

provision of human guardians for them variously

designated in different parts of the country. In (1874-75)

Ind App 145 (PC) the judicial Committee observed thus: "It

is only in an ideal sense that property can e said to belong

to an idol and the possession and management must in the

nature of things be entrusted with some person as shebait

or manger. It would seem to follow that the person so

entrusted must of necessity be empowered to do whatever

may be require for the service of the idol and for the benefit

and preservation of its property at least to as great a

degree as the manager of an infant heir" - words which

seem to be almost on echo of what was said in relation to a

church in a judgment of the days of Edward I: "A church

is always under age and is to be treated as an infant and

it is not according to law that infants should be

disinherited by the negligence of their guardians or be

barred of an action in case they would complain of

things wrongfully done by their guardians while they are

under age" (Pollock and Maitlands's 'History of English

Law'. Volume I, p. 463)".

1792. It should however be remembered that the juristic

person in the idol is not the material image, and it is an exploded

theory that the image itself develops into a legal person as soon

as it is consecrated and vivified by the Pran Pratishta ceremony.

It is not also correct that the supreme being of which the idol is

a symbol or image is the recipient and owner of the dedicated

property. This is clearly laid down in authoritative Sanskrit

1896

Texts. Thus, in his Bhashya on the Purva Mimamasa, Adhyaya

9, para 1, Sabara Swami states:

n Sox z kek s] n So{ k S=fefr] mipkjfe=e ~ ] ;k s inefH ki z S re ~

fou;k sDregfr] r=L; Loe ~A

u p x z kee ~ { k=e ~ ok ;Fk k f H ki z k;e ~ fofu; qDr n Sork ] rLekUu

lEi z;PNrk sfrA

n soifjpkjdk. k ke ~ r q rrk s H k frHk Z ofr] n sorke q f / k 'p ;r ~

R;Dre ~A

"Words such as 'village of the Gods,' 'land of the Gods' are

used in a figurative sense. That is property which can be

said to belong to a person, which he can make use of as he

desires. God however does not make use of the village of

lands, according to its desires".

1793. The legal position is comparable in many respects to

the development in Roman Law. So far as charitable

endowment is concerned, Roman Law, as later developed

recognised two kinds of juristic persons. Once was a corporation

or aggregate of persons which owed its juristic personality to

State sanction. A private person might make over property by

way of gift or legacy to a corporation already in existence and

might at the same time prescribe the particular purpose for

which the property was to be employed e.g. feeding the poor, or

giving relief to the poor or distressed/. The recipient corporation

would be in a position of a trustee and would be legally bound

to spend the funds for the particular purpose. The other

alternative was for the donor to create an institution or

foundation himself. This would be a new juristic person which

depended for its origin upon nothing else but the will of the

founder provided it was directed to a charitable purpose. The

foundation would be the owner of the dedicated property in the

eye of law and the administrators would be in the position of

1897

trustees bound to carry out the object of the foundation. As

observed by Sohm:

"During the later Empire - from the fifth centre onwards -

foundations created by private individuals came to be

recognised as foundations in the true legal sense, but only

if they took the form of a 'pia causa' ('Pium corpus') i.e.,

were devoted to 'pious uses', only in short, if they were

charitable institutions. Wherever a person dedicated

property - whether by gift inter vivos or by will - in favour

of the poor, or the sick, or prisoners, orphans, or aged the

dedicated property became the sole property of this new

subject: it became the sole property of the new juristic

person whom the founder had called into being. Roman

law, however, took the view that the endowments of

charitable foundations were a species of Church property,

Piae causac were subjected to the control of the Church,

that is, of the bishop or the ecclesiastical administrator, as

the case might be. A poa causa was regarded as an

ecclesiastical, and consequently, as a public institution,

and as such it shared that corporate capacity which

belonged to all ecclesiastical institutions by virtue of a

general rule of law. A pia causa did not require to have a

juristic personality expressly conferred upon it. According

to Roman law the act - whether a gift inter vivos or a

testamentary disposition - Whereby the founder dedicated

property to charitable uses was sufficient, without more to

constitute the pia causa a foundation in the legal sense, to

make it, in other words, a new subject of legal rights"

1794. We should in this context, make a distinction between

the spiritual and the legal aspect of the Hindu idol which is

1898

installed and worshipped. From the spiritual stand point the idol

may be to the worshipper a symbol (Pratika) of the Supreme

God-head intended to invoke a sense of the vast and intimate

reality and suggesting the essential truth of the Reaj that is

beyond all name of form, It is a basic postulate of Hindu

religion that different images do not represent different

divinities, they are really symbols of One Supreme Spirit and in

which ever name or from the deity is invoked, the Hindu

worshipper purports to worship the Supreme Spirit and nothing

else.

(Rig Veda I. 164)

They have spoken of Him as Agni, Mitra, Varuna,

Indra, the one Existence the sages speak of in many

ways). The Bhagavad Gita echoes this verse when it says:

(Thou art Vayu and Yama, Agni, Varuna and Moon:

Lord of Creation art Thou, and Grandsire). Sankara

- the great philosopher – refers to the one Reality,

who, owing to the diversity of intellects

(Matibheda) is conventionally spoken of

(Parikalpya) in various ways as Brahman, Visnu

and Mahesvara. It is however possible that the

founder of the endowment or the worshipper may not

conceive on this highest spiritual plane but hold that

the idol is the very embodiment of a personal God,

but that is not a matter with which the law is

concerned. Neither God nor any supernatural

being could be a person in law. But so far as the

deity stands as the representative and symbols of

the particular purpose which is indicated by the

donor, it can figure as a legal person. The true

1899

legal view is that in that capacity alone the dedicated

property vets in it. There is no principle why a deity

as such a legal person should not be taxed if such a

legal person is allowed in law to own property even

though in the ideal sense and to sue for the property,

to realise rent and to defend such property in a Court

of law again in the ideal sense... Our conclusion is

that the Hindu idol is a juristic entity.. capacity of

holding property and of being taxed through its

shebaits who are constructed with the possession and

management of its property.

1795. In Kalanka Devi Sansthan (supra) reiterating that a

Hindu idol is a juristic person, with respect to the vesting of

property, it held:

“The distinction between a manager or a Shebait of an idol

and a trustee where a trust has been created is well

recognised. The properties of the trust in law vest in the

trustee whereas in the case of an idol or a Sansthan they

do not vest in the manager or the Shebait. It is the deity

or the Sansthan which owns and holds the properties. It

is only the possession and the management which vest in

the manager” (Para 5)

1796. When property is given absolutely for the worship of

an idol it vests in the idol itself as a juristic person. However,

the idol cannot take advantage of the provision contained in the

Act by which possession can be claimed from the tenant on the

ground that it is required for personal cultivation. The

position of idol is not the same as minor and the idol does not

fall within Explanation 1 to S.2 (12).

1797. Physical or mental disability as defined by Section 2

1900

(22) lays emphasis on the words "personal labour of

supervision". The dominating idea of anything done personally

or person is that the thing must be done by the person himself

and not by or through some one else. It is true that the idol is

capable of holding property in the same way as a natural person.

It has a juridical status with the power of suing and being sued.

Its interests are attended to by the person who has the deity in

his charge and who is in law its manager with all the powers

which would. In such circumstances, on analogy, be given to the

manager of the estate of an infant heir. But the requirement of

personal supervision under the third category of personal

cultivation provided for in the definition under S. 2 (12) does

not admit of an intermediary between the landlord and the

laborers, who can act as agent of landlord, it cannot be said that

it is possible in the case of another landlord merely because the

landlord in the latter case is a juristic person. The cultivation of

the land concerned must be by natural persons and not by legal

persons. The provisions of the Berar Regulation of Agricultural

Leases Act ( C.P. Act 2 of 1951) which is already repealed, are

of no help in deciding whether idol can cultivate personally

within meaning of Explanation 1 to Section 2 (12) of the

Bombay Act.

1798. In Official Trustee of West Bengal Vs. Commissioner

of Income-tax (supra) the Hon’ble Apex Court referring

number of decisions reached to a conclusion that "a Hindu Deity

is a juristic person is a well-established proposition and has been

so for a long time.”

1799. In Smt. Panna Banerjee and Ors. Vs. Kali Kinkor

Ganguli (supra) the Court held against sale of deity and paras

65 and 66 held:

1901

“65. Moreover the alleged custom, if any, as to the sale of

these deities is wholly void. An idol can never be the

subject matter of commerce. The sale of an idol is

prohibited by Hindu Law, (See Khettar Chunder Ghose v.

Haridas Bundopadhyay, (1890) I.L.R.17 Cal. 557 at p.

559). A deity is not a chattel but a juridical person. No

custom can ever validate a sale of any deity. The legal

necessity of the deity cannot destroy the very existence of

the deity by selling it in the open market. The very thought

of it is opposed to the fundamental concept of the Hindu

Jurisprudence. It is against public policy. It is wholly

unreasonable. It is absolutely repugnant to the Hindu Law.

It is so repulsive to the judicial mind that every Court is

bound to strike it down in limine.

66. No one has ever heard that a deity can be served or

be sold by bits and bits. The deity is indivisible. It is the

supreme Being. The deity is not a property and no one

can be its owner not even its founder. The shebaits are

the managers of the deities though in reality they are its

glorified servants. No shebait can ever be the owner of

any deity. He is the custodian of the idol but this custody

does not nor can it ever confer any right on him to sell the

deity.” (emphasis added)

1800. The Calcutta judgment went in appeal to the Apex

Court. Affirming the judgment of the High Court, in Kali

Kinkor Ganguly Vs. Panna Banerjee (supra), the Apex Court

in paras 24 and 25 said:

“24. Dr. B.K. Mukherjea in his Tagore Law Lectures has

pointed out that the decision in Prasanna Kumari’s case

(supra) was that the rule of necessity extended only to an

1902

alienation of the temporality of the idol and it does not and

cannot apply to alienation to the spiritual rights and duties.

Dr. Mukherjea illustrated this with reference to the

decision in Nagendra Nath v. Rabindra I.L.R. 53 Cal.

132=(AIR 1926 Cal 490) and an earlier decision in

Rajeswar v. Gopeswar (supra). The doctrine of alienation

of shebaitship on the ground of necessity or benefit to the

deity is said by Dr. Mukherjea to be of doubtful authority

and based upon a misconception of certain

pronouncements of the Judicial Committee.

25. In the present case, the appellant cannot invoke the

doctrine of transfer of shebaiti right for the benefit of the

deity because the transfer by Pramila Debi to Upendra

Nath Ganguli is illegal for the principal reason that

neither the temple nor the deities nor the shebaiti right

can be transferred by sale for pecuniary consideration.

The transfer by sale is void in its inception.” (emphasis

added)

The Apex Court, however, expressed its disagreement

with the reasons contained in the concurring judgment of the

High Court.

1801. In Ram Jankijee Deities Vs. State of Bihar (supra)

the concept of “idol” or “deity” in Hindu Law was considered

and in paras 11, 13 and 14 the Court observed :

“11. “Hindu Law recognizes Hindu idol as a juridical

subject being capable in law of holding property by reason

of the Hindu Shastras following the status of a legal person

in the same way as that of a natural person. It is not a

particular image which is a juridical person but it is a

particular bent of mind which consecrate the image. How

1903

one sees the Deity : how one feels the deity and recognizes

the deity and then establishes the same in the temple upon

however performance of the consecration ceremony…”

13. Divergent are the views on the theme of images or

idols in Hindu Law. One school propagates God having

Swayambhu images or consecrated images: the other

school lays down God as omnipotent and omniscient and

the people only worship the eternal spirit of the deity and it

is only the manifestation or the presence of the deity by

reason of the charm of the mantras.

14. Images according to Hindu authorities, are of two

kinds: the first is known as Swayambhu or self-existent or

self-revealed, while the other is Pratisthita or established.

The Padma Purana says: "the image of Hari (God)

prepared of stone earth, wood, metal or the like and

established according to the rites laid down in the Vedas,

Smritis and Tantras is called the established

images.....where the self- possessed Vishnu has placed

himself on earth in stone or wood for the benefit of

mankind, that is styled the self-revealed." (B.K. Mukherjea

- Hindu Law of Religious and Charitable Trusts: 5th Edn.)

A Swayambhu or self-revealed image is a product of nature

and it is Anadi or without any beginning and the

worshippers simply discover its existence and such images

do not require consecration or Pratistha but a manmade

image requires consecration. This manmade image may be

painted on a wall or canvas. The Salgram Shila depicts

Narayana being the Lord of the Lords and represents

Vishnu Bhagwan. It is a Shila - the shalagram form

partaking the form of Lord of the Lords Narayana and

1904

Vishnu.” (emphasis added)

1802. The concept of image and deity in Hindu Law has

been told in para 16 to 19 of Ram Jankijee Deities (supra):

“16. The observations of the Division Bench has been in

our view true to the Shastras and we do lend our

concurrence to the same. If the people believe in the

temples’ religious efficacy no other requirement exists

as regards other areas and the learned Judge it seems has

completely overlooked this aspect of Hindu Shastras-In any

event, Hindus have in Shastras "Agni" Devta; "Vayu"

Devta-these deities are shapeless and formless but for

every ritual Hindus offer their oblations before the deity.

The Ahuti to the deity is the ultimate - the learned Single

Judge however was pleased not to put any reliance

thereon. It is not a particular image which is a juridical

person but it is a particular bent of mind which

consecrate the image.

17.One cardinal principle underlying idol worship ought to

be borne in mind:

"that whichever god the devotee might choose for

purposes of worship and whatever image he might

set up and consecrate with that object, the image

represents the Supreme God and none else. There is

no superiority or inferiority amongst the different

gods. Siva, Vishnu, Ganapati or Surya is extolled,

each in its turn as the creator, preserver and

supreme lord of the universe. The image simply gives

a name and form to the formless God and the

orthodox Hindu idea is that conception of form is

only for the benefit of the worshipper and nothing

1905

else." (B.K. Mukherjea - on Hindu Law of Religious

and Charitable Trusts-5th Edn.).

18. In this context reference may also be made to an earlier

decision of the Calcutta High Court in the case of Bhupati

Nath Smrititirtha v. Ram Lal Maitra, wherein Chatterjee, J.

(at page 167) observed:-

"A Hindu does not worship the "idol" or the

material body made of clay or gold or other

substance, as a mere glance at the mantras and

prayers will show. They worship the eternal spirit

of the deity or certain attributes of the same, in a

suggestive form, which is used for the convenience of

contemplation as a mere symbol or emblem. It is the

incantation of the mantras peculiar to a particular

deity that causes the manifestation or presence of the

deity or according to some, the gratification of the

deity." (emphasis added)

“19. God is Omnipotent and Omniscient and its presence

is felt not by reason of a particular form or image but by

reason of the presence of the omnipotent: It is formless, it

is shapeless and it is for the benefit of the worshippers

that there is manifestation in images of the Supreme Being.

‘The Supreme Being has no attribute, which consists of

pure spirit and which is without a second being, i.e. God is

the only Being existing in reality, there is no other being in

real existence excepting Him - (see in this context Golap

Chandra Sarkar, Sastri’s Hindu Law: 8th Edn.). It is the

human concept of the Lord of the Lords - it is the human

vision of the Lord of the Lords: How one sees the deity:

how one feels the deity and recognises the deity and then

1906

establishes the same in the temple (sic depends) upon

however performance of the consecration ceremony. The

Shastras do provide as to how to consecrate and the usual

ceremonies of Sankalpa and Utsarga shall have to be

performed for proper and effective dedication of the

property to a deity and in order to be termed as a juristic

person. In the conception of Debutter, two essential ideas

are required to be performed: In the first place, the

property which is dedicated to the deity vests in an ideal

sense in the deity itself as a juristic person and in the

second place, the personality of the idol being linked up

with natural personality of the shebait, being the manager

or being the Dharam karta and who is entrusted with the

custody of the idol and who is responsible otherwise for

preservation of the property of the idol. The Deva Pratistha

Tatwa of Raghunandan and Matsya and Devi Puranas

though may not be uniform in their description as to how

Pratistha or consecration of image does take place but it is

customary that the image is first carried to the Snan

Mandap and thereafter the founder utters the Sankalpa

Mantra and upon completion thereof, the image is given

bath with Holy water, Ghee, Dahi, Honey and Rose water

and thereafter the oblation to the sacred fire by which the

Pran Pratistha takes place and the eternal spirit is infused

in that particular idol and the image is then taken to the

temple itself and the same is thereafter formally dedicated

to the deity. A simple piece of wood or stone may become

the image or idol and divinity is attributed to the same. As

noticed above, it is formless, shapeless but it is the human

concept of a particular divine existence which gives it the

1907

shape, the size and the colour. While it is true that the

learned Single Judge has quoted some eminent authors but

in our view the same does not however, lend any assistance

to the matter in issue and the Principles of Hindu Law

seems to have been totally misread by the learned Single

Judge.” (emphasis added)

1803. In Shiromani Gurudwara Prabandhak Committee

Amritsar Vs. Shri Som Nath Dass (supra), the question before

the Hon'ble Apex Court was whether Guru Granth Sahib was a

juristic person or not. While dealing with the issue, the Court

observed that certain places of worship which were endowed

and recognized by public, like a Gurudwara, a church etc. can

also be juristic persons:

"Thus, it is well settled and confirmed by the authorities on

jurisprudence and Courts of various countries that for a

bigger thrust of socio-political-scientific development

evolution of a fictional personality to be a juristic person

became inevitable. This may be any entity, living,

inanimate, objects or things. It may be a religious

institution or any such useful unit which may impel the

Courts to recognise it. .... Similarly, where there is any

endowment for charitable purpose it can create institutions

like a church, hospital, gurudwara, etc. The entrustment of

an endowed fund for a purpose can only be used by the

person so entrusted for that purpose in as much as he

receives it for that purpose alone in trust. When the donor

endows for an idol or for a mosque or for any institution, it

necessitates the creation of a juristic person. The law also

circumscribes the rights of any person receiving such

entrustment to use it only for the purpose of such a juristic

1908

person. The endowment may be given for various purposes,

may be for a church, idol, gurdwara or such other things

that the human faculty may conceive of, out of faith and

conscience but it gains the status of juristic person when it

is recognised by the society as such.”

1804. In the above case the Apex Court in para 30 and 35,

also held:

“30. An idol is a “juristic person” because it is adored

after its consecration, in a temple. The offering are made

to an idol. The followers recognise an idol to be symbol for

God. Without the idol, the temple is only a building of

mortar, cement and bricks which has no sacredness or

sanctity for adoration. Once recognised as a “juristic

person”, the idol can hold property and gainfully enlarge

its coffers to maintain itself and use it for the benefit of its

followers. On the other hand in the case of mosque there

can be no idol or any images of worship, yet the mosque

itself is conferred with the same sacredness as temples with

idol, based on faith and belief of its followers. Thus the

case of a temple without idol may be only brick, mortar and

cement but not the mosque. Similar is the case with the

church. As we have said, each religion have different

nuclei, as per their faith and belief for treating any

entity as a unit.” (Para 30)

“In our view, no endowment or a juristic person depends

on the appointment of a manager. It may be proper or

advisable to appoint such a manager while making any

endowment but in its absence, it may be done either by the

trustees or courts in accordance with law. Mere absence of

a manager (sic. does not) negative the existence of a

1909

juristic person. As pointed out in Manohar Ganesh Vs.

Lakhmiram (approved in Jogendra Nath Naskars case)

referred to above, if no manager is appointed by the

founder, the ruler would give effect to the bounty. (Para 35)

1805. The Court in Shiromani Gurdwara Prabandhak

Committee, Amritsar Vs. Som Nath Dass & Ors. (supra) held

ultimately Guru Granth Sahib a legal person and rules that a

juristic person may be entity, living being, object or thing.

1806. The status of Hindu idol, therefore, as juridical person

cannot be disputed in view of the aforementioned authority/

pronouncement on this aspect. It is true that the initial verdict of

Privy Council in Vidya Varuthi Thirtha Vs. Baluswami Ayyar

(supra) and Pramatha Nath Mullick (supra) did attract some

otherwise opinion from certain jurist like Dr.S.C. Bagchi in his

Ashutosh Mookerjee Lectures, 1931 on Juristic Personality of

Hindu Deities, has illustrated in Lecture III, pp. 51-78 and Sir

Frederick Pollock in 41 Law Quarterly Review at page 421 but

it is too late in the day. Now to admit of any exception in the

matter in the case of an idol, therefore, answer is quite easy

though in the context of requirement of consecration, as argued

by the learned counsels for Muslim parties, it is yet to be seen as

to when and in what circumstances an idol can be said to be a

Deity having conferred with the juridical personality. It is no

doubt true that every idol is not treated to be a Deity. Some

Shastric procedure is provided for the said purpose but what is

that procedure, how it is to be observed and in what manner rule

travels in much wider plane.

1807. In Damodar Das Vs. Adhikari Lakhan Das (1909-10)

37 IA 147, debuttar property vested in an idol and managed by

Mahant. On his death, his two Chelas, represented by plaintiff

1910

and defendant settled a disputed right to succession by an

ikrarnama in 1874 under which each chela obtained possession

of the share of debottar properties allotted to him. The suit

brought in 1901 to eject the defendant from the property allotted

to him was held barred by limitation, treating his possession

adverse to the idol and also to the plaintiff. It is a short

judgment. The report of the judgment shows that it was not

contested by the respondents before the Judicial Committee. The

Privy Council though held that the property prior to the

execution of Ikrarnama vested in idol, the legal entity and

Mahant was only his representative and manager but then

proceeded to hold that on execution of Ikrarnama the possession

of junior Chela pursuant to the Ikrarnama became adverse to the

right of the idol and of the senior chela, representing that idol

and therefore, the suit was barred by limitation. (Subsequently

the Apex Court in Bishwanath Vs. Sri Thakur Radha Ballabhi

(supra) has held that an idol is a minor and that being so, it

could not have filed a suit by itself.) In a case where two Chelas

executed Ikrarnama themselves, it was unexpected that one of

them would have filed suit for restoration of the possession of

the property of the idol. Moreover, if both the chelas could have

been treated to be co-shebaits of the idol's property, the

possession of the property would be permissive and in case

there was any trespass, the property being that of minor, the

question of adverse possession would not come. The limitation

would not commence as held subsequently by the Apex Court. It

is well settled now that the judgments of the Privy Council are

binding on the High Courts only if there is no otherwise

judgments or authority of the Apex Court but where there is

authority of the Apex Court otherwise, it being the law of the

1911

land under the Constitution of India, the judgment of the Privy

Council has not a binding precedent.

1808. A Full Bench of Bombay High Court in State of

Bombay Vs. Chhaganlal Gangaram Lavar, AIR 1955 Bom. 1

considered the question of binding nature of decisions of the

Privy Council after independence and enforcement of

Constitution on 26.01.1950 and held:

“So long as the Supreme Court does not take a

different view from the view taken by the Privy Council, the

decisions of the Privy Council are still binding upon us,

and when we say that the decisions of the Privy Council

are binding upon us, what is binding is not merely the point

actually decided but an opinion expressed by the Privy

Council, which opinion is expressed after careful

consideration of all the arguments and which is

deliberately and advisedly given.”

1809. This decision has been referred to with approval by the

Apex Court in Pandurang Kalu Patil and another Vs. State of

Maharashtra, AIR 2002 SC 733. It is thus clear that it is only

an opinion expressed by the Privy Council after careful

consideration of all the arguments and which is deliberately and

advisedly given which is binding and not merely point actually

decided. We, however, propose to consider the above judgment

in Damodar Das Vs. Adhikari Lakhan Das (supra) in detail to

show as to what actually was held therein while discussing issue

no. 13 pertaining to limitation in Suit-5 and leave this as it is at

this stage.

1810. A Full Bench in Jodhi Rai Vs. Basdeo Prasad, 8 ALJ

817=(1911) ILR 33 Allahabad 735 held that a suit on behalf of

an idol must be carried on by some person who represents the

1912

idol usually a manager of the temple, in which the idol is

installed.

1811. In Darshan Lal and others Vs. Shibji Maharaj

Birajman, AIR 1923 All. 120, the question arose as to whether

Swami Lachhmi Nand, priest of the temple was entitled to file a

suit as a next friend of the idol. He said that he looks after the

management of the temple which the Court understood as if he

conducts the worshipped and dispensed such charities, if any,

as are customary at the said shrine and held that Sri Lachhmi

Nand was entitled to bring suit as a next friend of the idol. It

said:

" The fact that he is not the manager or trustee under the

particular deed of endowment which he desires to set up

for the benefit of the aforesaid idol would not prevent him

from having a right to act on behalf of the idol in this

litigation, if he occupied a position of manager or trustee

qua the performance of these ceremonies of worship or

charities for the benefit of which the trust monies were

directed to be applied."

1812. However, the Court further held that a person claiming

a mere benevolent interest in the fortunes of an idol cannot be

permitted to sue in the name and as next friend of the idol.

1813. In Sheo Ramji Vs. Ridhnath Mahadeo Ji AIR 1923

All. 160 the Court permitted a suit brought by the idol through

Sri Vivekanand as next friend to recover possession of the

property said to be wrongly sold by a relative of one Ajudhia

Puri who was the original manager of the temple property. The

Court found that Ajudhia Puri was the original manager of the

temple property and had died. His Chela and successor was a

minor. Amongst others one Ram Kishna Das was appointed to

1913

supervise the management who in his turn appointed one Sri

Vivekanand as guardian of the property of the idol on behalf of

the minor. Some property of the idol was sold by a relative of

Ajudhia Puri and to recover its possession Vivekanand filed the

suit. The Court held that Vivekanand has sufficient interest in

the subject magtter of the suit to bring the same in the name and

on behalf of the idol.

1814. In Pramatha Nath Mullick (surpa), on page 143, held

that an idol is a juristic person and the Shebait is its

representative. It is not movable property and cannot be willed

away by the Shebait and observed:

“There may be, in the nature of things, difficulties in

adjusting the legal status of the idol to the circumstances

and requirements of its protection and location and there

may no doubt also be a variety of other contracts of such a

persona with mundane ideas. But an argument which

would reduce a family idol to the position of a mere

moveable chattel is one to which the Board can give no

support. They think that such an argument is neither in

accord with a true conception of the authorities, nor

with principle. The Board does not find itself at variance

with the views upon this subject taken in the Appellate

Court or with the analysis of the authorities there

contained.

1815. In Pramatha Nath Mullick vs. Pradyumna Kumar

Mullick (supra) the Could also said that an idol may appear by

its interested next friend. The Judicial Committee observed:

“One of the questions emerging at this point, is as to

the nature of such an idol and the services due thereto. A

Hindu idol is, according to long established authority,

1914

founded upon the religious customs of the Hindus, and the

recognition thereof by Courts of Law, a “juristic entity.” It

has a juridical status with the power of suing and being

sued. Its into rests are attended to by the person who has

the deity in his charge and who is in law its manager with

all the powers which would, in such circumstances, on

analogy, be given to the manager of the estate of an infant

heir. It is unnecessary to quote the authorities; for this

doctrine, thus simply stated, is firmly established.” (page

140)

“The person founding a deity and becoming

responsible for those duties is de facto and in common

parlance called shebait. This responsibility is, of course,

maintained by a pious Hindu, either by the personal

performance of the religious rites or—as in the case of

Sudras, to which caste the parties belonged—by the

employment of a Brahmin priest to do so on his behalf. Or

the founder, any time before his death or his successor

likewise may confer the office of shebait on another.”

(page 141)

“It must be remembered in regard to this branch of

the law that the duties of piety from the time of the

consecration of the idol are duties to something existing

which, though symbolising the Divinity, has in the eye of

the law a status as a separate persona. The position and

rights of the deity must in order to work this out both in

regard to its preservation, its maintenance and the services

to be performed, be in the charge of a human being.” (page

141)

9. “A fortiori it is open to an idol acting through his

1915

guardian the Shebait to conduct its own worship in its own

way at its own place always on the assumption that the acts

of the Shebait expressing its will are not inconsistent with

the reverent and proper conduct of its worship by those

members of the family who render service and pay homage

to it.” (page 145)

1816. It shows that a Hindu deity though treated as an

individual but not an ordinary individual in all sense in all

respects. A Deity is not only an individual but individual plus

something else.

1817. In Administrator General of Bengal Vs. Balkissen,

ILR 51 Cal 953=AIR 1925 Cal 140 the Court held that after the

appointment of Shebait the right to sue for possession of the

property with which the idol is endowed, belongs to the Shebait

and not to the idol. With great respect, we find that the

observation that the right to sue belongs to Shebait and not the

idol has to be read in the context of the dispute before the Court.

It cannot be read that even though the property is debutter

property, that belong to an idol yet idol itself has no right to sue

or being sued but this would belong to Shebait. Such an

understanding and interpretation of the judgement would reduce

the status of idol qua Shebait who otherwise is not held to be the

owner of the debutter property since idol being a juristic person

is the owner. As usually happen, since a juristic person cannot

act on its own, for the purpose of procedure the action on behalf

of juristic person is initiated and taken by its manager, and, in

the case of an idol by the Shebait, if any, otherwise the next

friend but that does not mean that the idol itself is denuded of its

right to protect its property by filing a suit at all.

1818. The case of Gopalji Maharaj Vs. Krishna Sunder

1916

Nath Kaviraj AIR 1929 All. 887 was decided by an Hon'ble

Single Judge of this Court in the peculiar facts of that case. A

suit was filed by Sri Swami Keshwanandji in the name of Sri

Gopalji Maharaj, an idol of a Hindu temple claiming himself as

a Manager of the shrine. As a matter of fact, the Court found

that the shrine was founded by one Jagdish Pandit and

successors to him in his family were Madho Sudan Das

Goswami, Narhari Das Goswami, Naudip Chand Goswami and

then Brij Gopal Goswami. Shebaitship or Mutwalliship vests in

the family of Jagdish Pandit the founder and Sri Brij Gopal

Goswami, the sole surviving member of the founder's family

and Swami Keshwanand had no right in the matter. He claimed

himself to be the manager of the plaintiff idol through one Mt.

Basant Kumari and the Court found that she had no right to

appoint Swami Keshwanand as manager of the shrine. In these

circumstances, the question arose whether the suit was properly

framed having been filed on behalf of the plaintiff idol by a

person who was neither Mutwalli nor Shebait of the temple nor

was appointed Shebait or manager of the temple by or on behalf

of Brij Gopal Goswami who was the sole surviving member of

the founder's family. This question was answered against Swami

Keshwanand and the suit was held not maintainable. This Court

recorded a finding of fact that it was not shown what interest

Swami Keshwanand had in the idol or in the property belonging

to the idol.

1819. In Manohar Mukherji Vs. Bhupendra Nath AIR

1932 Cal 791 a Full Bench observed:

"But this analogy of a human transfer need not be

carried too far, for the deity is not in need of property, nor

does it hold any; what is given to the deity becomes

1917

available to all.

The deity is the recipient of the gift only in an ideal

sense; the dedicated property belongs to the deity in a

similar sense; in reality the property dedicated is in the

nature of an ownerless thing. In ancient times, except in

cases of property dedicated to a brotherhood of sanyasis,

all endowments ordinarily were administered by the

founder himself and after him his heirs. The idea of

appointing a shebait is of more modern growth. When a

Hindu creats an endowment, its management is primarily

in him and his heirs,and unless he appoints a shebait he

himself fills that office and in him rests that limited

ownership, - notwithstanding that, on the one hand, he is

the donor and, on the other, the recipient on behalf of the

deity, the juridical person, - which has to be exercised until

the property offered to the deity has been suitably disposed

of. The true principle of Hindu Law is what is mentioned in

the Chhandogya Upanishada, namely, that the offerings to

the gods are offerings for the benefit of all beings (Chap.

5, p. 24 K. 2-5). And Raghunandan has quoted a text of

Matsya Sukta which says:

Having made offerings to a God, the sacrificial fee

also should be given to the God. The whole of that should

be given to a Brahmin otherwise it is fruitless."

1820. In Deoki Nandan Vs. Murlidhar (supra) the Apex

Court considered the question as to who are beneficiaries when

the temple is built and idol installed therein and the property

endowed therefor. In paragraph no.6 of the judgment the Court

held that under the Hindu law an idol is a juristic person capable

of holding property and the property endowed for the institution

1918

vests in it but it is only in an ideal sense that the idol is the

owner of the endowed property and it cannot itself make use of

them; it cannot enjoy them or dispose of them, or even protect

them. In short, the idol can have no beneficial interest in the

endowment. In para 7 the Court held that the true beneficiaries

of religious endowments are not the idols but the worshippers,

and that the purpose of the endowment is the maintenance of

that worship for the benefit of the worshippers. It held:

“(7) When once it is understood that the true

beneficiaries of religious endowments are not the idols but

the worshipers, and that the purpose of the endowment is

the maintenance of that worship for the benefit of the

worshipers, the question whether an endowment is private

or public presents no difficulty. The cardinal point to be

decided is whether it was the intention of the founder that

specified individuals are to have the right of worship at the

shrine, or the general public or any specified portion

thereof. In accordance with this theory, it has been held

that when property is dedicated for the worship of a family

idol, it is a private and not a public endowment, as the

persons who are entitled to worship at the shrine of the

deity can only be the members of the family, and that is an

ascertained group of individuals. But where the

beneficiaries are not members of a family or a specified

individual, then the endowment can only be regarded as

public, intended to benefit the general body of

worshippers.”

1821. In Angurbala Mullick v. Debabrata Mullick (supra),

while examining the nature of Sevayatship as a property,

Hon'ble Supreme Court distinguished between the English trust

1919

and Hindu religious endowment as:

"It is settled by the pronouncement of the Judicial

Committee in Vidya Varuti v. Balusami, 48 I.A. 302 that the

relation of a Shebait in regard to debutter property is not

that of a trustee to trust property under the English law. In

English law the legal estate in the trust property vests in

the trustee who holds it for the benefit of cestui que trust. In

a Hindu religious endowment on the other hand the entire

ownership of the dedicated property is transferred to the

deity or the institution itself as a juristic person and the

Shebait or Mahant is a mere manager.”

1822. Distinction between right of the idol to file a suit itself

or a suit filed by Shebait for the benefit of an idol has been

noticed by a Division Bench of Bombay High Court in Shree

Mahadoba Devasthan Vs. Mahadba Romaji Bidkar & Others

AIR 1953 Bombay 38. There Jagadindra Nath Vs. Hemanta

Kumar Devi (supra) was relied on to argue that the right to sue

vested in the Shebait and not in the idol. This aspect has been

dealt with in a lucid manner in paras 2 and 3 of the judgment,

which says:

"2. ...The contention, however, which was urged by the

defendants and which found favour with the learned trial

Judge was that even though the image of Shree Mahadoba

was a juridical person the whole management of the

properties belonging to the image could be and was

carried on by its shebait or its vahivatdar and the right to

sue for the protection of the properties belonging to the

image of Shree Mahadoba was vested in the shebait and

not in the image or the idol. Reliance was placed in support

of this contention on the observations of their Lordships of

1920

the Privy Council in Jagadindra Nath v. Hemanta

Kumari Debi, 32 cal. 129 P.C. where Sir Arthur Wilson

observed (p. 141) :

"But assuming the religions dedications to have been of

the strictest character, it still remains that the possession

and management of the dedicated property belongs to

the shebait. And this carries with it the right to bring

whatever suits are necessary for the protection of the

property. Every such right of suit is vested in the shebait,

not in the idol, and in the present case the right to sue

accrued to the plaintiff when he was under age. The case

therefore falls within the clear language of S.7,

Limitation Act..."

These observations were particularly relied on for the

purpose of shewing that the suit for setting aside the

alienations complained of could not be filed in the name of

Shree Mahadoba Devasthhan at all but could only be filed

in the name of the shebait for the time being who was

Waman Chimnaji Waghule, original defendant 3. These

observations of their Lordships of the Privy Council were,

however, made in a suit which was a suit for recovering

possession of the property belonging to the idol against the

persons who had dispossessed the idol of the same. The

shebait of the idol was then a minor. The idol was no doubt

a juridical person and capable of suing or being sued, but

even there the suit could be brought in the name of the idol

by the shebait and the shebait was a minor with the result

that their Lordships of the Privy Council held that the right

of possession and management of the dedicated property

having belonged to the shebait whatever suits were

1921

necessary for the protection of the property could also be

brought by the shebait. There is no doubt that the words

"not in the idol" are a part of the sentence which was

used by their Lordships: "Every such right is vested in

the shebait, not in the idol." Their Lordships of the Privy

Council were, however, concerned with a case where

even if the idol being a juridical person capable of

holding the property could have filed the suit for

recovering possession of the property of which it was

dispossessed, that suit could only have been filed though

in the name of the idol by its shebait and the shebait

being a minor, they had got to consider what the position

would be if the shebait was the person who could and

should have filed the suit in the name of the idol for

recovering possession of the property. We are of the

opinion that their Lordships had not their attention

focussed on this aspect of the question, namely, whether a

suit could have been filed in the name of the idol by the

shebait apart from the shebait vindicating his right of

possession and management of the dedicated property and

filing a suit for the protection of the same. This dictum of

their Lordships of the Privy Council was considered by a

Division Bench of the Calcutta High Court in the case of

Jyoti Prosad v. Jahor Lal, AIR 1945 Cal 268. In the

course of the judgment Biswas J. observed as follows (p.

277) :

"On the first point, the appellants' sheet anchor is the

dictum of Sir Arthur Wilson in the Privy Council case in

Jagadindra Nath Soy v. Hemanta Kumari Debi, 81

Ind. App. 203, that the right of suit is vested in the

1922

shebait, and not in the idol, but as has been explained in

various decisions this does not and cannot mean that a

Hindu idol is incapable of suing. The power of suing (as

also being sued) undoubtedly resides in the idol, though

ex necessitate rei the power must be exercised by and

through a sentient being representing the idol. As was

pointed out by Pal J. In. Tarit Bhusan v. Sri Iswaar

Sridhar Salagram Shila Thakur, I.L.R. (1941) 2 Cal. 477

at page 531 where this question is discussed, the suit in

Jagadindra Nath Roy v. Hemanta Kumari Debi, 31

Ind. App. 203 (P.C.), was not by the idol represented

by its shebait but by the shebait himself as such to

enforce the proprietary right of the idol in certain

properties. The High Court had dismissed the suit as

barred by limitation on the ground that as the interest

was admitted to be in the idol, there was nothing to

prevent a suit being brought on behalf of the idol by the

plaintiff's mother during his minority, but the Judicial

Committee reversed the decision, holding that as the

possession and management of the dedicated property

belonged to the shebait and this carried with it the

right to bring whatever suits were necessary for the

protection of the property, the right to sue accrued to

the plaintiff, and as he was a minor at the time, he

could bring the suit within three years after he

attained majority under Section 7 of Act 15 of 1877

(corresponding to S. 6 of the present Limitation Act). It

is in this connection that Sir Arthur Wilson made the

observation on which the appellants rely."

The learned Judge then proceeded to quote the

1923

observations of Lord Shaw in Pramatha Nath Mullick v.

Pradhyumna Kumar Mullick, 52 Ind. App. 245 where

their Lordships of the Privy Council dwelling on the nature

of a Hindu idol expressly recognised it as a juristic entity

and observed that it has a juridical status with the power of

suing and being sued; and also the observations of the

Judicial Committee in Radha Benode Mandal v. Gopal

Jiu Thakur, 54 Ind. App. 238 P.C., where a clear

distinction was drawn between a suit in which the idol itself

was the plaintiff and the suit in which the plaintiffs wore

shebaits of the idol. The learned Judge then observed (p.

277):

"It is quite true that a Hindu idol is a juridical person

capable of holding legal rights only in an ideal sense,

and it may also be, as was indicated by Sir George

Rankin in the Privy Council decision in Masjid Shahid

Ganj v. Shiromani Gurudwira Parbandhak Committee,

Amritsar, 67 Ind. App. 251 at p.264 (P.C.), that the

procedure of our Courts only allows for a suit in the

name of an idol, but nevertheless the position remains

incontestable that a Hindu idol may be a competent

plaintiff in a suit in respect of property held or

claimed by it, and that this is a right quite distinct

from that which belongs to its shebait or shebaits to

sue on its behalf."

(3) Normally speaking, a manager or an agent would not

be competent to file a suit in his own name in regard to the

affairs of his principal and such a suit even if brought by

the manager would have to be in the name of the principal.

The principal in the case of an image or idol is not an

1924

entity capable of acting on its own, with the result that it

has of necessity got to act through its manager or an

accredited agent, who under the circumstances is the only

person capable of performing these functions in the name

of the idol, The shebait is in possession and management of

the property belonging to the image or idol, and laving

such possession and management vested in him, it is only

an extension of the principle of responsibility from the

image or idol to the manager, or to use the other words,

from the principal to the agent to vest the right of

protection of the property which is incidental to the right of

possession and management thereof by way of filing a suit

in connection with the same, in the shebait. The extension

of the right in the shebait however does not mean that the

right which the image or the idol as a juridical person has

by virtue of its holding the property to file a suit in regard

thereto is by any process eliminated. Both these rights can

exist simultaneously, so that if the suit is filed in the name

of the image or idol, the image or the idol would be a

proper plaintiff, though, as observed before, of necessity it

would have to be represented in the suit by its manager or

shebait. If the manager or the shebait on the other hand

chooses in vindication of his right to sue for the protection

of the properties to file a suit in his own name, he may just

as well do so. But that would be no bar to the right of the

image or the idol to file such a suit if it had chosen to do

so. Of course these rights either by the image or the idol or

by the manager or by the shebait could be exercised only

by the one or the other and not by both; so that if the cause

of action was prosecuted to judgment, it would be merged

1925

in a decree properly passed in favour of the plaintiff and

the defendant could not be proceeded against any more in

respect of that very cause of action." (emphasis supplied)

1823. In Sri Iswar Radha Kanta Jew Thakur and others

V. Gopinath Das and others AIR 1960 Cal. 741 Hon'ble P.C.

Mallick, J. in para 18 said:

" .....................According to Hindu Law, sebait

represents the deity and he alone is competent to institute

a suit in the name of the deity. In exceptional

circumstances, however, where the sebait does not, or by

his own act deprives himself of the power of representing

the deity, a third party is competent to institute a suit in the

name of the deity to protect the debutter property. Dr. Das

contends that such a party must be a member of the family

or a worshipper and that a total stranger, in law, is not

competent to institute a suit in the name of the deity. I do

not, however, consider this to be the correct view in law. A

worshipper or a member of the family has no doubt his own

right to institute a suit to protect his right to worship and

for that purpose to protect the debutter property. That is,

however, a suit by the member of the family or worshipper

in his personal capacity and not a suit by the deity. The

deity has also a right of its own to have a suit instituted

by a next friend. As I understand the law, the person

entitled to act as next friend is not limited to the

members of the family or worshipper. Anybody can act

as such next friend, but the law requires that anybody

other than sebait instituting a suit in the name of the deity

must be appointed as such by an order of the Court."

(Para 18)

1926

1824. In Bishwanath & others Vs. Sri Thakur Radha

Ballabhi (supra) the Apex Court upheld the right of a deity to

file a suit for declaration of its title and possession thereof. It

also held that an idol of Hindu temple is a juridical person and

when Shebait acts adversely to its interest, the idol being in the

position of a minor, any person interested in the worship of idol

can represent as its next friend to file a suit. The Court said :

"(9) Three legal concepts are well settled: (1) An idol of a

Hindu temple is a juridical person; (2) when there is a

Shebait, ordinarily no person other than Shebait can

represent the idol; and (3) worshippers of an idol are its

beneficiaries, though only in a spiritual sense....."

"An idol is in the position of a minor and when the

person representing it leaves it in a lurch, a person

interested in the worship of the idol can certainly be

clothed with an ad hoc power of representation to protect

its interest. It is a pragmatic, yet a legal solution to a

difficult situation. Should it be held that a Shebait, who

transferred the property, can only bring a suit for recovery,

in most of the cases it will be an indirect approval of the

dereliction of the Shebait's duty, for more often than not he

will not admit his default and take steps to recover the

property, apart from other technical pleas that may be

open to the transfer in a suit.......That is why decisions have

permitted a worshipper in such circumstances to represent

the idol and to recover the property for the idol." (Para 10)

1825. A Single Judge in Kishore Joo Vs. Guman Behari Joo

Deo, AIR 1978 All.-1 also followed the ratio and in para 9 of the

judgment observed:

"It is settled law that normally it is the Shebait alone who

1927

can file a suit on behalf of the Idol, but it is also equally

well settled that in exceptional circumstances persons other

than a Shebait can institute a suit on behalf of an Idol."

1826. Now we come to some precedents about temple. In

N.C. Ramanatha Iyer Vs. Board of Commissioners for Hindu

Religious Endowments, Madras AIR 1954 Madras 492 the

Court observed:

"...The essential requirements of a temple are that it should

be a place dedicated to, or founded for, the benefit of the

Hindu community, or a section of it, and should be used as

a place of worship. ..."

1827. The Apex Court in Poohari Fakir Sadavarthy Vs.

Commissioner (supra) has laid down the requisite conditions

for a religious institution to be a “temple” and observed as

under:

"A religious institution will be a temple if two conditions

are satisfied. One is that it is a place of public religious

worship and the other is that it is dedicated to or is for

the benefit of, or is used as of right by the Hindu

Community, or any section thereof, as a place of

religious worship."

To constitute a temple it is enough if it is a place of

public religious worship and if the people believe in its

religious efficacy irrespective of the fact whether there is

an idol or a structure or other paraphernalia. It is

enough if the devotees or the pilgrims feel that there is

some super human power which they should worship and

invoke its blessings." (Para 15) (emphasis added)

1828. In the above case the Court also considered Clause 12,

Section 9 of Madras Hindu Religious Endowments Act, 1927

1928

which defines 'temple' and held:

“The institution in suit will be a temple if two conditions

are satisfied. One is that is a place of public religious

worship and the other is that it is dedicated to or is for the

benefit of, or is used as of right by, the Hindu community,

or any section thereof, as a place of religious worship. We

are of opinion that the oral and documentary evidence fully

establish the appellants’ case that it is not a temple as

defined in the Act.” (Para 8)

1829. In Tilkayat Shri Govindlalji Maharaj Vs. State of

Rajasthan AIR 1963 SC 1638 the question when the existence

of a public temple can be conceived, was considered and in para

23, it says:

"23. . . . Where evidence in regard to the foundation of the

temple is not clearly available, sometimes, judicial

decisions rely on certain other facts which are treated as

relevant. Is the temple built in such an imposing manner

that it may prima facie appear to be a public temple? The

appearance of the temple of course cannot be a decisive

factor; at best it may be a relevant factor. Are the members

of the public entitled to an entry in the temple? Are they

entitled to take part in offering service and taking Darshan

in the temple,? Are the members of the public entitled to the

take part in the festivals and ceremonies arranged in the

temple? Are their offerings accepted as a matter of right?

The participation of the member of the public in the

Darshan in the temple and in the daily acts of worship or in

the celebrations of festival occasions. may be a very

important factor to consider in determining, the character

of the temple.”

1929

1830. Various authorities have held that public institutions

can be treated as juristic person. Relationship between a temple

and an institution was discussed in Commissioner for Hindu

Religious and Charitable Endowments, Mysore v.

Ratnavarma Heggade (supra), wherein the Hon'ble Supreme

Court was to decide whether the temple in dispute was a

"temple" as well as a "religious endowment" under the T.N.

Hindu Religious Endowments Act, 1927. While deciding the

matter, Hon'ble Court observed in paragraph 45:

"If the temple as a place of worship, is an integral part of

an Institution, so that it is not separable as an institution,

in itself ... In such a case the "institution" is not the temple,

although a temple can, by itself, be an institution."

1831. Construing the definition of “temple” under Section

6(20) of Tamil Nadu Hindu Religious and Charitable

Endowments Act, 1959, Hon'ble Mohan, J. (as his Lordship

then was) in T.V. Durairajulu Naidu Vs. Commissioner,

(supra), in para 18 of the judgment, observed:

"18. . . . If a sense of reverence is created by the place in

the belief that God resides there or if an edifice devoted to

divine worship, that would be enough to attract the

definition of “Temple” under S. 6(20) of the Act. In other

words, it is a sense of reverence that is very important.

…........Nowhere the requirements as are ordinarily

expected of a temple are insisted upon. It is a faith that it

is the abode of God that matters. It is that compelling

faith, that by offering prayers, one will be the object of

bounty, that is important.” (emphasis added)

1832. In Bala Shankar Maha Shankar Bhattjee and others

Vs. Charity Commissioner 1995 Suppl. (1) SCC 485 while

1930

laying down certain principles of law, after considering the

earlier decision in respect to private and public temple, it was

held as under:

“18. From the aforesaid discussion the following

principles of law would emerge.

19. A place in order to be a temple, must be a place

for public religious worship used as such place and must

be either dedicated to the Community at large or any

section thereof as a place of public religious worship. The

distinction between a private temple and public temple is

now well settled. In the case of former the beneficiaries are

specific individuals; in the latter they are indeterminate or

fluctuating general public or a class thereof. Burden of

proof would mean that a party has to prove an allegation

before he is entitled to a judgment in his favour. The one or

the other of the contending parties has to introduce

evidence on a contested issue. The question of onus is

material only where the party on which it is placed would

eventually lose if he failed to discharge the same. Where,

however, parties joined the issue, led evidence, such

evidence can be weighed in order to determine the issue.

The question of burden becomes academic.

20. An idol is a jurisitic person capable of holding

property. The property endowed to it vests in it but the

idol has no beneficial interest in the endowment. The

beneficiaries are the worshippers. Dedication may be

made orally or can be inferred from the conduct or from a

given set of facts and circumstances. There need not be a

document to evidence dedication to the public. The

consciousness of the manager of the temple or the devotees

1931

as to the public character of the temple; gift of properties

by the public or grant by the ruler or Govt.; and long use

by the public as of right to worship in the temple are

relevant facts drawing a presumption strongly in favour of

the view that the temple is a public temple. The true

character of the temple may be decided by taking into

consideration diverse circumstances. Though the

management of a temple by the members of the family for a

long time, is a factor in favour of the view that the temple is

a private temple it is not conclusive. It requires to be

considered in the light of other facts or circumstances.

Internal management of the temple is a mode of orderly

discipline or the devotees are allowed to enter into the

temple to worship at particular time or after some duration

or after the head man leaves, the temple are not conclusive.

The nature of the temple and its location are also relevant

facts. The right of the public to worship in the temple is a

matter of inference.

21. Dedication to the public may be proved by

evidence or by circumstances obtainable in given facts and

circumstances. In given set of facts, it is not possible to

prove actual dedication which may be inferred on the

proved facts that place of public religious worship has

been used as of right by the general public or a section

thereof as such place without let or hindrance. In a

public debutter or endowment, the dedication is for the use

or benefit of the public. But in a private endowment when

property is set apart for the worship of the family idol, the

public are not interested. The mere fact that the

management has been in the hands of the members of the

1932

family itself is not a circumstance to a conclude that the

temple is a private trust. In a given case management by

the members of the family may give rise to an inference

that the temple is impressed with the character of a private

temple and assumes importance in the absence of an

express dedication through a document. As stated earlier,

consciousness of the manager or the devotees in the user by

the public must be as of right. If the general public have

always made use of the temple for the public worship

and devotion in the same way as they do in other

temples, it is a strong circumstance in favour of the

conclusiveness of public temple. The origin of the temple,

when lost in antiquity it is difficult to prove dedication to

public worship. It must be inferred only from the proved

facts and circumstances of a given case. No set of general

principles could be laid.”

1833. In A.S. Narayana (supra), dealing this aspect the

Court has observed:

“101. The temples are taken to be sanctified space

where entire unfragmented Space and Time, in other

words, the entire 'Universe' are deposited and the image of

the Deity is worshipped symbolising the “Supreme.”

Although the Deities appear to be many, each and every

Deity is again viewed as the Supreme One and, therefore,

the Supreme Reality is one and non-dual. The multiplicity

of the Gods has been effected in order to offer the paths

which are required according to the entitlement and

evolution of each and everyone.”

“108. Temple has become the most important

centre of activities-religious, cultural and social-among the

1933

people, in particular rural India. Temple is conceived in

the likeness of human body. Parts of the temple are named

accordingly, by which the organic unity of the temple is

emphasised. Obviously, therefore, religious people endow

their property for upkeep of temples or propagation of

religion. Majority people in India are dedicated to Vishnu,

Shiva, Shakti, Ganpathi and Hanuman of Hindu Gods. The

cardinal principle underlying idol worship is for one of

four modes for self-realisation. Daily routine life in

performing rituals to Deity will be gone through with

minute accuracy of Abishek (bathing), changing of clothes,

offerings of food and the retirement (rest). Religion,

therefore, has occupied a significant place and role in the

public life in our country. Hindus, therefore, believe that

religion is an essential and powerful factor in raising

humanity to higher level of thought and being. The priest

(archaka or by whatever name called) would conduct

rituals to the Deity as per prescribed Agamas, forms,

practices and sampradayams.”

1834. In Pritam Dass Mahant Vs. Shiromani Gurdwara

Prabandhak Committee, AIR 1984 SC 858 the distinction

between temple of Hindus and that of Sikhs came to be

considered and the Apex Court held that temples are fouLand

almost in every religion but there are some differences between

the sikh temples and those of other religions. The Apex Court

thereafter pin pointed the distinctive features of Sikh Gurdwaras

qua Hindu temples and held:

“(1) Sikh temples are not the place of idol worship as the

Hindu temples are. There is no place for idol worship in a

Gurdwara. The central object of worship in a Gurdwara is

1934

Sri Guru Granth Sahib, the holy book. The pattern of

worship consists of two main items: reading of the holy

hymns followed by their explanation by some learned man,

not necessarily a particular Granthi and then singing of

some passages from the Holy Granth. The former is called

Katha and the second is called Kirtan. A Sikh thus

worships the Holy Words that are written in the Granth

Sahib, the Words or Shabada about the Eternal Truth of

God. No idol or painting of any Guru can be worshipped.

(2) Sikh worship in the Gurdwara is a congregational

worship, whereas Hindu temples are meant for individual

worship. A Sikh does the individual worship at home when

he recites Gurbani daily. Some scriptures meant for this

purpose are Japji, Jaap, Rahras, Kirtan Sohila. Sangat is

the collective body of Sikhs who meet very day in the

Gurdwara.”

1835. The above dictum was followed in Shiromani

Gurdwara Parbandhak Committee Vs. Mahant Harnam

Singh and others (supra) (para 13 of the judgement) and after

referring to the above mentioned observations in para 14 the

Court said:

“14. The sine qua non for an institution, to be treated

as Sikh Gurdwara, as observed in the said case, is that

there should be established Guru Granth Sahib, and the

worship of the same by congregation, and a Nishan Sahib.

There may be other rooms of the institution made for other

purposes but the crucial test is the existence of Guru

Granth Sahib and the worshippers thereof by the

congregation and Nishan Sahib.”

1836. In Mukundji Mahraj Vs. Persotam Lalji Mahraj

1935

(supra), holding that alienation of temple is not permissible, a

Division Bench of High Court held in para 28 as under:

“28. Whatever may be said about a permanent alienation

of endowed property other than a temple, in the very nature

of things, having regard to the duties of a Manager or a

Shebhait towards the idol or institution, there can be no

necessity of alienating the temple or any portion of it in

which the idol is installed. The maintenance of the entire

building is the prime concern of the Manager or the

Shebait.

The temple has a special sanctity distinct from

other endowed property. To alienate the temple itself is to

cut at the root of the very existence of the idol in the

habitation intended by the founder Hindu Sentiment views

the alienation of a temple as a sacrilege. Not until the idol

has been removed from the temple in accordance with

shastric rites and has assumed a new habitation and the

temple abandoned as a place of worship may the temple be

alienated or sold in execution of a decree.”

1837. On pointing out to Sri Ravi Shankar that in some of the

judgment like that of Madras High Court, the observations are

with reference to the particular statute and the definition of

temple therein, Sri Prasad replied that the definition of temple in

the above Acts has to be read in the light of Shastric Laws of

Hindus and if any other view is taken or the definition of temple

is taken otherwise then it would be illegal, ultra vires and

violative of Article 25 of the Constitution which confer

fundamental right of religious customs etc. according to the

religious scriptures.

1838. In Kasi Mangalath Illath Vishnu Nambudiri (supra)

1936

the Court held that a public temple is “res extra commercium”

and says :

“.....Being a public temple and therefore res extra

commercium it is not open to a private individual to

acquire by prescription any private ownership in regard

thereto. The character of the temple as a public temple

cannot be taken away by any assertion of private

right ......”

1839. In Hari Raghunath Patvardhan Vs. Antaji Bhikaji

Patvardhan & Others 1919 (XLIV) ILR Bombay 466 a

dispute arose about removal of image from its position and to

install it in a new building. The Court said :

“Taking the most liberal view of the powers of the

manager, I do not think that as the manager of a public

temple he can do what he claims the power to do, viz., to

remove the image from its present position and to instal it

in the new building. The image is consecrated in its present

position for a number of years and there is the existing

temple. To remove the image from that temple and to

instal it in another building would be practically putting

up a new temple in place of the existing temple.

Whatever may be the occasions on which the installation of

a new image as a substitute for the old may be allowable

according to the Hindu law, it is not shown on behalf of the

defendant that the ruinous condition of the existing

building is a ground for practically removing the image

from its present place to a new place permanently. We are

not concerned in this suit with the question of the

temporary removal which may be necessary when the

existing building is repaired. The defendant claims the

1937

right to instal it in the new building permanently, and I do

not think that as a manager he could do so, particularly

when he is not supported by all the worshippers of the

temple in taking that step"

1840. In Kalikanta Chatterjee & Ors. Vs. Surendra Nath

Chakravarty & Ors. AIR 1925 Calcutta 648 an interesting

question came to be considered. There was an old temple having

the image of deity Tara. The image was broken about 40 years

ago by some ruffians, fragments of which were subsequently

recovered from a tank. The temple also fell down at that time.

Thereafter the worship of the deity was carried out with a ghot

(earthen pot) on an an adjoining piece of land. With the passage

of time, the shrine lost its popularity. The defendant no.2

thereafter with an idea of restoring the glory of shrine, made

efforts, as a result whereof a new temple was erected, and a new

image was brought and installed therein. A question was raised

whether there is restoration of old image by substituting a new

one. The Calcutta High Court referred to a passage in a Nirnaya

Sindhu and also said:

"With regard to the second contention viz., that there could

be no restoration of the old image in the present case

according to the Shastras, it is urged that the image is

admitted in the plaint to be (Self-revealed) and reliance is

placed upon a passage in the Nirnaya Sindhu (see also

Dharma Sindhu) which runs as follows:

vFk th.kksZ)kj%A l p fyaxknkS nX/ks Hkxzs vfyrs ok

dk;~;Z%A

v;¥~p vukfnfl) izfrf"Br fyaxknkS Hkaxkfnnq"Vsfiu

dk;~;Z%

r=rq egkfHk"ksda dq;~;Zfnfr fofodze%A

10. Now renewal of Decayed (Image is considered) that

1938

is to be performed when a Linga and the like are burnt or

broken removed (from its proper place). But this is not to

be performed with respect to a Linga or like which is

established by a Sadhu or one who has become successful

in the highest religious practices, or which is Anadi i.e., of

which the commencement is not known or which has no

commencement. But there Mahabhishika or the ceremony

of great appointment should be performed. This is said by

Tre-Vikrama:-Nirnaya Sindhu of Kamala-kara Bhatta,

Bombay Edition of 1900, age 264 (See Golap Chandra

sarkar's Hindu Law, 4th Edition 473). But according to the

plaintiff the image was installed by some remote ancestor

of his, while according to the defendants it was installed by

one Jantridhar. The image therefore does not appear to be

Anadi. It is then urged even if the image bad a

commencement, the restoration had not been made within

the time prescribed. But the text from Haya Sirsha upon

which reliance is placed, while laying down that the

restoration after the prescribed period is blameworthy does

not say that it is altogether invalid."

1841. The Court also held that it should be seen as to how

the people concerned treat and if they believe and proceed that it

is a restoration of old image and continue with the worship,

nothing more is required.

1842. In Purna Chandra Bysack Vs. Gopal Lal Sett &

Ors. 1908 (VIII) Calcutta Law Journal 369, Special bench of

Calcutta High Court observed:

“The image or idol is merely the symbol of the

Deity, and the object of worship is not the image but the

God believed to be manifest in the image for the benefit

1939

of the worshipper who cannot conceive or think of the

Deity without the aid of a perceptible form on which he

may fix his mind and concentrate his attention for the

purpose of meditation. If the image be cracked, broken,

mutilated or lost, it may be substituted by a new one duly

consecrated.”

1843. In Idol of Thakurji Shri Govind Deoji Maharaj,

Jaipur (supra) the Apex Court observed in para 6 as under:

“It is obvious that in the case of a grant to the Idol or

temple as such there would be no question about the death

of the grantee and, therefore, no question about its

successor. An Idol which is a juridical person is not subject

to death, because the Hindu concept is that the Idol lives

for ever, and so, it is plainly impossible to predicate about

the Idol which is the grantee in the present case that it has

died at a certain time and the claims of a successor fall to

be determined.” (Para 6)

1844. In para 15 of the judgment in Ram Jankijee Deities

(supra) it was held, while usually an idol is consecrated in a

temple, it does not appear to be an essential condition. The Apex

Court affirmed the Division Bench decision of Madras High

Court in Board of Commissioners for H.R.E. Vs. Pidugu

Narasimham (supra) and T.R.K. Ramaswami Servai (supra)

reiterated:

"The test is not whether it conforms to any particular

school of Agama Shastras. The question must be decided

with reference to the view of the class of people who take

part in the worship. If they believe in its religious efficacy,

in the sense that by such worship they are making

themselves the object of the bounty of some super-human

1940

power, it must be regarded as "religious worship"..... If the

public or that section of the public who go for worship

consider that there is a divine presence in a particular

place and that by offering worship there they are likely to

be the recipients of the blessings of God, then we have the

essential features of a temple as defined in the Act." (Para

15)

1845. A Division Bench of Andhra Pradesh High Court in

Venkataramana Murthi Vs. Sri Rama Mandhiram (supra)

observed that the existence of an idol and a dhwajasthambham

are not absolutely essential for making an institution a temple

and so long as the test of public religious worship at that place is

satisfied, it answer the definition of a temple. This decision is

also referred and approved in Ram Jankijee Deities (supra).

1846. A Division Bench of Madras High Court in Board of

Commissioners for H.R.E. Vs. Pidugu Narasimham (supra)

on page 135 held :

“we think that the question must be decided with reference

to the view of the class of people who take part in the

worship. If they believe in its religious efficacy, in the sense

that by such worship they are making themselves the object

of the bounty of some super-human power, it must be

regarded as “religious worship.” (Page135)

1847. In T.R.K. Ramaswami Servai Vs. Board of

Commissioners (supra) with reference to Section 9 (12) of

Madras Hindu Religious Endowments Act, 1927, the Court in

para 47 observed as under:

“Consecration, according to the ceremonial rites

prescribed by the Agama Sastras, is not a legal requisite,

though it is a sacredotal necessity according to the views of

1941

the orthodox. The test is not whether the installation of an

idol and the mode of its worship conform to any particular

school of Agama Sastras. If the public or that section of

the public who go for worship consider that there is a

divine presence in a particular place and by offering

worship at that place, they are likely to be the recipients

of the bounty or blessings of God, then, you have got the

essential features of a temple as defined in S. 9, cl. (12) of

the Act. The presence of an idol, though an invariable

feature of Hindu temples, is not a legal requisite under the

definition of a temple in S. 9, cl. (12) of the Act. The word

“institution” which is used in S. 84(1) of the Act is a term

of very wide import, capable of different meanings

according to the context in which it is used. It means,

among other things, a foundation, a system, a constitution,

an establishment, or organisation, a place designed for the

promotion of some religious, charitable or other object of

public utility and so on.” (para 47) (emphasis added)

1848. In Saraswathi Ammal Vs. Rajagopal Ammal (supra),

the Court while holding that, a “religious purpose” under Hindu

Law must be determined according to Hindu notions, observed:

“(6) It was held in the Madras decisions above noticed that

the building of a samadhi or a tomb over the remains of a

person and the making of provision for the purpose of

Gurupooja and other ceremonies in connection with the

same cannot be recognised as charitable or religious

purpose according to Hindu law. This is not on the ground

that such a dedication is for a superstitious use and hence

invalid. Indeed the law of superstitious uses as such has no

application to India. The ground of the Madras decisions is

1942

that a trust of the kind can claim exemption from the rule

against perpetuity only if it is for a religious and charitable

purpose recognised as such by Hindu law and that Hindu

law does not recognise dedication for a tomb as a religious

or charitable purpose. It is, however, strenuously argued

by the learned counsel for the appellants that the perpetual

dedication of property in the present case, as in the Madras

cases above referred to, must be taken to have been made

under the belief that it is productive of spiritual benefit to

the deceased and as being some what analogous to worship

of ancestors at a sradh.

It is urged, therefore, that they are for religious

purposes and hence valid. The following passage in

Mayne’s Hindu Law, 11th Edition, at page 192, is relied on

to show that

"What are purely religious purposes and

what religious purposes will be charitable must be

entirely decided according to Hindu law and

Hindu notions."

It is urged that whether or not such worship was

originally part of Hindu religion, this practice has now

grown up and with it the belief in the spiritual efficacy

thereof and that courts cannot refuse to accord

recognition to the same or embark on an enquiry as to

the truth of any such religious belief, provided it is not

contrary to law or morality. It is further urged that unlike

in English law, the element of actual or assumed public

benefit is not the determining factor as to what is a

religious purpose under the Hindu law.

Now, it is correct to say that what is a religious

1943

purpose under the Hindu law must be determined

according to Hindu notions. This has been recognised by

courts from very early times. Vide- 'Fatma Bibi v.

Advocate-General of Bombay' , 6 Bom 42 (D). It cannot

also be disputed that under the Hindu law religious or

charitable purposes are not confined to purposes which are

productive of actual or assumed public benefit. The

acquisition of religious merit is also an important criterion.

This is illustrated by the series of cases which recognise the

validity of perpetual endowment for the maintenance and

worship of family idols or for the continued performance of

annual sradhs of an individual and his ancestors. See-

'Dwarkanath Bysack v. Burroda Persaud Bysack', 4 Cal

443 (E) and 'Rupa Jagashet v. Krishnaji', 9 Bom 169 (F).

So far as the textual Hindu law is concerned what acts

conduce to religious merit and justify a perpetual

dedication of property therefor is fairly definite. As stated

by the learned author Prananath Saraswathi on the Hindu

Law of Endowments at page 18-

"From very ancient times the sacred writings of

the Hindus divided work productive of religious merit

into two divisions named 'ishta' and 'purtta', a

classification which has come down to our own

times. So much so that the entire object of Hindu

endowments will be found included within the

enumeration of 'ishta' and 'purtta'."

The learned author enumerates what are 'ishta'

works at pages 20 and 21 and what are 'purtta' works at

page 27. This has been adopted, by later learned authors

on the law of Hindu Religious Endowments and accepted

1944

by Subrahmania Ayyar J., in his judgment in-

'Parthasarthy Pillai v. Thiruvengada Pillai'. 30 Mad 340 at

p. 342 (G). These lists are no doubt not exhaustive but they

indicate that what conduces to religious merit in Hindu law

is primarily a matter of Shastraic injunction. To the extent,

therefore, that any purpose is claimed to be a valid one for

perpetual dedication on the ground of religious merit

though lacking in public benefit,it must be shown to have a

Shastraic basis so far as Hindus are concerned. No doubt

since then other religious practices and beliefs may have

grown up and obtained recognition from certain classes, as

constituting purposes Conducive to religious merit. If such

beliefs are to be accepted by courts as being sufficient for

valid perpetual dedication of property therefore without the

element of actual or presumed public benefit it must at

least be shown that they have obtained wide recognition

and constitute the religious practice of a substantial and

large class of persons. That is a question which does not

arise for direct decision in this case. But it cannot be

maintained that the belief in this behalf of one or more

individuals is sufficient to enable them to make a valid

settlement permanently tying up property. The heads of

religious purposes determined by belief in acquisition of

religious merit cannot be allowed to be widely enlarged

consistently with public policy and needs of modern

society.”

1849. The concept of idol, juristic personality and its co-

relation with consecration came to be considered before a

Division Bench of this Court in Gokul Nathji Maharaj and

another Vs. Nathji Bhogi Lal (supra). The Court observed in

1945

para 4 of the judgement:

“According to the traditions these idols that were

handed over by Ballabhacharyaji to his seven grandsons

were self-revealed idols of Lord Krishna and it is on that

account that the learned Judge came to the conclusion that

there could not have been due consecration according to

law and it could not be said that the spirit of God ever

came to reside in them. As it was pointed out by the learned

Munsif in his very careful judgment that according to true

Hindu belief the idol is not worshipped as such but it is the

God behind the idol which is the object or worship.

The learned Munsif has pointed out that there are

elaborate provisions in Hindu Law which enable a stone

image or an image made of wood to be changed and

replaced by another. It cannot be said that the stone image

or image made of wood or of gold or other materials is the

real object of worship or the real person owning the

property. The real owner of the property is deemed to be

God Himself represented through a particular idol or deity

which is merely a symbol.

From the evidence it is clear that plaintiff 1 as such a

symbol has been the object of worship by a large sect of

people known as 'Nimar Yas' for over three hundred years

and extensive properties are owned by and are in the

possession of the said idol. In the circumstances, we think it

was unreasonable for the learned Judge to expect that

there would be any direct evidence of consecration, nor is

it reasonable after such a length of time to require the

plaintiffs to prove affirmatively that such ceremonies were

performed as would entitle the plaintiff to claim to be a

1946

juristic personality.” (para 4)

1850. Further with respect to consecration the Court said:

“5. From the fact that the idol was said to be self-

revealed that learned Judge assumed that there could have

been no consecration of it. It is impossible after this length

of time to prove by affirmative evidence whether there was

or there was no consecration and we have not been

referred to any book of authority or any evidence which

would go to show that in the cases of idols which were

deemed by their followers to be self-revealed no

consecration takes place. From the fact and circumstances,

however, it is abundantly clear that the idol was duly

recognised by all those who believed in it as an idol of

Lord Krishna and was worshipped as such. Properties

were dedicated to it and properties have been brought to its

use through centuries that it has existed.

After all the question whether a particular idol is

or is not duly consecrated must depend upon the religious

faith and belief of its followers and we have no doubt that

all that was necessary to deify it must have been done by

those who believed in the said idol.”

1851. In Ganpat Vs. Returning Officer (1975) 1 SCC 589,

the Court noticed varied religious practices of Hindus and

observed that Hindu is inclined to believe the divine in every

manifestation, whatever it may be, and is doctrinally tolerant.

The Hindu is deposed to think synthetically. To regard other

forms of worship of strange Gods and divergent doctrines as

inadequate rather than wrong or objectionable; he (Hindu) tends

to believe that the highest divine powers co-complement each

other for the well-being of the world and mankind. Religion,

1947

therefore, is one of the personal beliefs, is more a cultural

attitude towards a physical thinking in that way of life and is

worship of the image of God in different manifestation.

1852. In Sri Adi Visheshwara of Kashi Vishwanath

Temple, Varanasi (supra), in para 30 of the judgment, it was

held:

“30. Hinduism cannot be defined in terms of Polytheism

or Henotheism or Monotheism. The nature of Hindu

religion ultimately is Monism/Advaita. This is in

contradistinction to Monotheism which means only one

God to the exclusion of all others, Polytheism is a belief of

multiplicity of Gods: On the contrary, Monism is a spiritual

belief of one Ultimate Supreme and manifests Himself as

many. This multiplicity is not contrary to on-dualism. This

is the reason why Hindus stall adoring any Deity either

handed down by tradition or brought by a Guru or

Swambhuru and seek to attain the Ultimate Supreme.”

(emphasis added)

1853. In Shastri Yagnapurushdasji & others Vs. Muldas

Bhundardas Vaishya and another AIR 1966 SC 1119, the

Court considered the question as to whether Swaminarayan sect

is a religion distinct and separate from Hindu religion or not:

“26. That takes us to the main controversy between

the parties. Are the appellants justified in contending that

the Swaminarayan sect is a religion distinct and separate

from the Hindu religion, and consequently, the temples

belonging to the said sect do no fall within the ambit of s. 3

of the Act ? In attempting to answer this question, we must

inevitably enquire what are the distinctive features of

Hindu religion? The consideration of this question, prima

1948

facie, appears to be somewhat inappropriate within the

limits of judicial enquiry in a court of law. It is true that the

appellants seek for reliefs in the present litigation on the

ground that their civil rights to manage their temples

according to their religious tenets are contravened; and so,

the Court is bound to deal with the controversy as best as it

can. The issue raised between the parties is undoubtedly

justiciable and has to be considered as such; but in doing

so, we cannot ignore the fact that the problem posed by the

issue, though secular in character, is very complex to

determine; its decision would depend on social,

sociological, historical, religious and philosophical

considerations; and when it is remembered that the

development and growth of Hindu religion spreads over a

large period nearly 4,000 years, the complexity of the

problem would at once become patent.

27. Who are Hindus and what are the broad features

of Hindu religion, that must be the first part of our enquiry

in dealing with the present controversy between the parties.

The historical and etymological genesis of the word

"Hindu" has given rise to a controversy amongst

indologists; but the view generally accepted by scholars

appears to be that the word "Hindu" is derived from the

river Sindhu otherwise known as Indus which flows from

the Punjab. "That part of the great Aryan race", says

Monier Williams, "which immigrated from Central Asia,

through the mountain passes into India, settled first in the

districts near the river Sindhu (now called the Indus). The

Persians pronounced this word Hindu and named their

Aryan brethren Hindus. The Greeks, who probably gained

1949

their first ideas of India from the Persians, dropped the

hard aspirate, and called the Hindus "Indoi". ("Hinduism"

by Monier Williams, p.1.)"

28. The Encyclopaedia of Religion and Ethics, Vol.

VI, has described "Hinduism" as the title applied to that

form of religion which prevails among the vast majority of

the present population of the Indian Empire (p. 686). As

Dr. Radhakrishnan has observed; "The Hindu civilization

is so called, since its original founders or earliest followers

occupied the territory drained by the Sindhu (the Indus)

river system corresponding to the North-West Frontier

Province and the Punjab. This is recorded in the Rig Veda,

the oldest of the Vedas, the Hindu scriptures which give

their name to this period of Indian history. The people on

the Indian side of the Sindhu were called Hindu by the

Persian and the later western invaders". ("The Hindu View

of Life" by Dr. Radhakrishnan, p. 12.) That is the genesis of

the word "Hindu".

29. When we think of the Hindu religion, we find it

difficult, if not impossible, to define Hindu religion or even

adequately describe it. Unlike other religions in the world,

the Hindu religion does not claim any one prophet; it does

not worship any one God; it does not subscribe to any one

dogma; it does not believe in any one philosophic concept;

it does not follow any one set of religious rites or

performances; in fact, it does not appear to satisfy the

narrow traditional features of any religion or creed. It may

broadly be described as a way of life and nothing more.

30. Confronted by this difficulty, Dr. Radhakrishnan

realised that "to many Hinduism seems to be a name

1950

without any content. Is it a museum of beliefs, a medley of

rites, or a mere map, a geographical expression?" (“The

Hindu View of Life” by Dr. Radhakrishnan, p. 11.) Having

posed these questions which disturbed foreigners when

they think of Hinduism, Dr. Radhakrishnan has explained

how Hinduism has steadily absorbed the customs and ideas

of peoples with whom it has come into contact and has thus

been able to maintain its supremacy and its youth. The

term 'Hindu', according to Dr. Radhakrishnan, had

originally a territorial and not a credal significance. It

implied residence in a well-defined geographical area.

Aboriginal tribes, savage and half-civilized people, the

cultured Dravidians and the Vedic Aryans were all Hindus

as they were the sons of the same mother. The Hindu

thinkers reckoned with the striking fact that the men and

women dwelling in India belonged to different

communities, worshipped different gods, and practiced

different rites (“The Hindu View of Life” by Dr.

Radhakrishnan, p. 12) (Kurma Purana)

31. Monier Williams has observed that "it must be

borne in mind that Hinduism is far more than a mere form

of theism resting on Brahmanism. It presents for our

investigation a complex congeries of creeds and doctrines

which in its gradual accumulation may be compared to the

gathering together of the mighty volume of the Ganges,

swollen by a continual influx of tributary rivers and

rivulets, spreading itself over an ever-increasing area of

country and finally resolving itself into an intricate Delta

of tortuous steams and jungly marshes ..... The Hindu

religion is a reflection of the composite character of the

1951

Hindus, who are not one people but many. It is based on

the idea of universal receptivity. It has ever aimed at

accommodating itself to circumstances, and has carried on

the process of adaptation through more than three

thousand years. It has first borne with and then, so to

speak, swallowed, digested, and assimilated something

from all creeds." ("Religious Thought & Life in India" by

Monier Williams, P. 57.)

32. We have already indicated that the usual tests

which can be applied in relation to any recognised religion

or religious creed in the world turn out to be inadequate in

dealing with the problem of Hindu religion. Normally, any

recognised religion or religious creed subscribes to a body

of set philosophic concepts and theological beliefs. Does

this test apply to the Hindu religion? In answering this

question, we would base ourselves mainly on the exposition

of the problem by Dr. Radhakrishnan in his work on Indian

Philosophy. ("Indian Philosophy" by Dr. Radhakrishnan,

Vol. I, pp. 22-23.) Unlike other countries, India can claim

that philosophy in ancient India was not an auxiliary to any

other science or art, but always held a prominent position

of independence. The Mundaka Upanisad speaks of

Brahma-vidya or the science of the eternal as the basis of

all sciences, 'sarva-vidya -pratishtha'. According to

Kautilya, "Philosophy" is the lamp of all the sciences, the

means of performing all the works, and the support of all

the duties. "In all the fleeting centuries of history", says Dr.

Radhakrishnan, "in all the vicissitudes through which India

has passed, a certain marked identity is visible. It has held

fast to certain psychological traits which constitute its

1952

special heritage, and they will be the characteristic marks

of the Indian people so long as they are privileged to have

a separate existence." The history of Indian thought

emphatically brings out the fact that the development of

Hindu religion has always been inspired by an endless

quest of the mind for truth based on the consciousness that

truth has many facets. Truth is one, but wise men describe

it differently. The Indian mind has, consistently through the

ages, been exercised over the problem of the nature of

godhead the problem that faces the spirit at the end of life,

and the inter-relation between the individual an the

universal soul. "If we can abstract from the variety of

opinion", says Dr. Radhakrishnan, "and observe the

general spirit of Indian thought, we shall find that it has a

disposition to interpret life and nature in the way of

monistic idealism, though this tendency is so plastic, living

and manifold that it takes many forms and expresses itself

in even mutually hostile teachings". (Ibid, p.32.)

33. The monistic idealism which can be said to be the

general distinguishing feature of Hindu Philosophy has

been expressed in four different forms : (1) Non-dualism or

Advitism; (2) Pure monism; (3) Modified monism; and (4)

Implicit monism. It is remarkable that these different forms

of monistic idealism purport to derive support from the

same vedic and Upanishadic texts. Shankar, Ramanuja,

Vallabha and Madhva all based their philosophic concepts

on what they regarded to be the synthesis between the

Upanishads, the Brahmasutras and the Bhagavad Gita.

Though philosophic concepts and principles evolved by

different Hindu thinkers and philosophers varied in many

1953

ways and even appeared to conflict with each other in some

particulars, they all had reverence for the past and

accepted the Vedas as the sole foundation of the Hindu

philosophy. Naturally enough, it was realised by Hindu

religion from the very beginning of its career that truth was

many-sided and different views contained different aspects

of truth which no one could fully express. This knowledge

inevitably bred a spirit of tolerance and willingness to

understand and appreciate the opponents point of view.

That is how "the several views set forth in India in regard

to the vital philosophic concepts are considered to be the

branches of the self-same tree. The short cuts and blind

alleys are somehow reconciled with the main road of

advance to the truth." (Ibid p. 48.) When we consider this

broad sweep of the Hindu philosophic concepts, it would be

realised that under Hindu philosophy, there is no scope for

ex-communicating any notion or principle as heretical and

rejecting it as such.

34. Max Muller who was a great oriental scholar of

his time was impressed by this comprehensive and all-

pervasive aspect of the sweep of Hindu philosophy.

Referring to the six systems known to Hindu philosophy,

Max Muller observed : "The longer I have studied the

various systems, the more have I become impressed with

the truth of the view taken by Vijnanabhiksu and others that

there is behind the variety of the six systems a common

fund of what may be called national or popular philosophy,

a large manasa (lake) of philosophical thought and

language far away in the distant North and in the distant

past, from which each thinker was allowed to draw for his

1954

own purposes". ("Six Systems of Indian Philosophy" by

Max Muller, p. xvii.)

35. Beneath the diversity of philosophic thoughts,

concepts and ideas expressed by Hindu philosophers who

started different philosophic schools, lie certain broad

concepts which can be treated as basic. The first amongst

these basic concepts is the acceptance of the Veda as the

highest authority in religious and philosophic matters. This

concept necessarily implies that all the systems claimed to

have drawn their principles from a common reservoir of

thought enshrined in the Veda. The Hindu teachers were

thus obliged to use the heritage they received from the past

in order to make their views readily understood. The other

basic concept which is common to the six systems of Hindu

philosophy is that "all of them accept the view of the great

world rhythm. Vast periods of creation, maintenance and

dissolution follow each other in endless succession. This

theory is not inconsistent with belief in progress; for it is

not a question of the movement of the world reaching its

goal times without number, and being again forced back to

its starting point........ It means that the race of man enters

upon and retravals its ascending path of realisation. This

interminable succession of world ages has no beginning".

("Indian Philosophy" by Dr. Radhakrishnan, Vol. II., p. 26)

It may also be said that all the systems of Hindu philosophy

believe in rebirth and pre-existence. "Our life is a step on a

road, the direction and goal of which are lost in the

infinite. On this road, death is never an end of an obstacle

but at most the beginning of new steps". (“Indian

Philosophy by Dr. Radhakrishnan, Vol. II, p. 27) Thus, it is

1955

clear that unlike other religions and religious creeds,

Hindu religion is not tied to any definite set of philosophic

concepts as such.

36. Do the Hindus worship at their temples the same

set or number of gods ? That is another question which can

be asked in this connection; and the answer to this question

again has to be in the negative. Indeed, there are certain

sections of the Hindu community which do not believe in

the worship of idols; and as regards those sections of the

Hindu community which believe in the worship of idols

their idols differ from community to community and it

cannot be said that one definite idol or a definite number of

idols are worshipped by all the Hindus in general. In the

Hindu Pantheon the first goods that were worshipped in

Vedic times were mainly Indra, Varuna, Vayu and Agni.

Later, Brahma, Vishnu and Mahesh came to be

worshipped. In course of time, Rama and Krishna secured

a place of pride in the Hindu Pantheon, and gradually as

different philosophic concepts held sway in different sects

and in different sections of the Hindu community, a large

number of gods were added, with the result that today, the

Hindu Pantheon presents the spectacle of a very large

number of gods who ar worshipped by different sections of

the Hindus.

37. The development of Hindu religion and

philosophy shows that from time to time saints and

religious reformers attempted to remove from the Hindu

thought and practices elements of corruption and

superstition and that led to the formation of different sects.

Buddha started Buddhism; Mahavir founded Jainism;

1956

Basava became the founder of Lingayat religion,

Dnyaneshwar and Tukaram initiated the Varakari cult;

Guru Nanak inspired Sikhism; Dayananda founded Arya

Samaj, and Chaitanya began Bhakti cult; and as a result of

the teachings of Ramakrishna and Vivekananda, Hindu

religion flowered into its most attractive, progressive and

dynamic form. If we study the teachings of these saints and

religious reformers, we would notice an amount of

divergence in their respective views; but underneath that

divergence, there is a kind of subtle indescribable unity

which keeps them within the sweep of the broad and

progressive Hindu religion.

38. There are some remarkable features of the

teachings of these saints and religious reformers. All of

them revolted against the dominance of rituals and the

power of the priestly class with which it came to be

associated; and all of them proclaimed their teachings not

in Sanskrit which was the monopoly of the priestly class,

but in the languages spoken by the ordinary mass of people

in their respective regions.”

1854. Thereafter, the Court considered the teachings and

followings of the Swaminarayan sect and upheld the decision of

the High Court that it is not a sect distinct and separate from

Hindu religion.

1855. Construing the right protected under Articles 25 and 26

of the Constitution, the Apex Court in para 31 Sri Adi

Visheshwara of Kashi Vishwanath Temple (supra) said:

31. The protection of Articles 25 and 26 of the

Constitution is not limited to matters of doctrine. They

extend also to acts done in furtherance of religion and,

1957

therefore, they contain a guarantee for rituals and

observances, ceremonies and modes of worship which

are integral parts of the religion. . . . Religion

undoubtedly has its basis in a system of beliefs which are

regarded by those who profess religion to be conducive to

the future well-being. It is not merely a doctrine. It has

outward expression in acts as well. It is not every aspect of

the religion that requires protection of Articles 25 and 26

nor has the Constitution provided that every religious

activity would not be interfered with. Every mundane and

human activity is not intended to be protected under the

Constitution in the grab of religion. Articles 25 and 26

must be viewed with pragmatism. ......... The right to

observe and practice rituals and right to manage in

matters of religion are protected under these Articles.

But right to manage the Temple or endowment is not

integral to religion or religious practice or religion as such

which is amenable to statutory control. These secular

activities are subject to State regulation but the religion

and religious practices which are integral part of religion

are protected. It is well settled law that administration,

management and governance of the religious institution or

endowment are secular activities and the State could

regulate them by appropriate legislation. . . .”

1856. In Sri Venkataramana Devaru Vs. State of Mysore

(supra) in reference to Article 26 (b) the Court said that

practices which are regarded by the community as part of its

religion and under the ceremonial law pertaining to temples,

who are entitled to enter into them for worship and were they

are entitled to stand for worship and how the worship is to be

1958

conducted are all matter of religion.

1857. Construing the scope of Article 25 and 26 insofar as it

confers fundamental right protecting religious freedom, the

Apex Court in A.S. Narayana (supra) said that religion as used

in these Articles must be construed in its strict and etymological

sense. Religion is that which binds a man with his Cosmos, his

creator or super force. It is different and rather impossible to

define or delimit the expressions “religion” or “matters of

religion” used in Article 25 and 26. Essentially, religion is a

matter of personal faith and belief of personal relations of an

individual with what he regards as Cosmos, his Maker or his

Creator which, he believes, regulates the existence of insentient

beings and the forces of the universe. Religion is not necessarily

theistic and in fact there are well-known religions in India itself

like Budhism and Jainism which do not believe in the existence

of God. In India. Muslims believe in Allah and have faith in

Islam; Christians in Christ and Christianity; Parsis in

Zorastianism; Sikhs in Gurugranth Sahib and teachings of

Gurunanak Devji, its founder, which is a facet of Hinduism like

Brahamos, Aryasamaj etc. The Court in para 89 of the judgment

further observed :

“89. A religion undoubtedly has its basis in a system of

beliefs and doctrine which are regarded by those who

profess religion to be conducive to their spiritual well-

being. A religion is not merely an opinion, doctrine or

belief. It has outward expression in acts as well. It is not

every aspect of religion that has been safeguarded by

Articles 25 and 26 nor has the Constitution provided that

every religious activity cannot be interfered with. Religion,

therefore, be construed in the context of Articles 25 and 26

1959

in its strict and etymological sense. Every religion must

believe in a conscience and ethical and moral precepts.

Therefore, whatever binds a man to his own conscience

and whatever moral or ethical principle regulate the lives

of men believing in that theistic, conscience or religious

belief that alone can constitute religion as understood in

the Constitution which fosters feeling of brotherhood,

amenity, fraternity and equality of all persons which find

their foot-hold in secular aspect of the Constitution.

Secular activities and aspects do not constitute religion

which brings under its own cloak every human activity.

There is nothing which a man can do. Whether in the way

of wearing clothes or food or drink, which is not

considered a religious activity. Every mundane or human

activity was not intended to be protected by the

Constitution under the guise of religion. The approach to

construe the protection of religion or matters of religion or

religious practices guaranteed by Articles 25 and 26 must

be viewed with pragmatism since by the very nature of

things, it would be extremely difficult, if not impossible to

define the expression religion of matters or religion or

religious belief or practice.”

1858. Again in para 90, the Court observed :

“Therefore, the right to religion guaranteed under Article

25 or 26 is not an absolute or unfettered right to

propagating religion which is subject to legislation by the

State limiting or regulating any activity-economic,

financial, political or secular which are associated with

religious belief, faith, practice or custom. They are subject

to reform on social welfare by appropriate legislation by

1960

the State. Though religious practices and performances of

acts pursuance of religious belief are as much a part of

religion as faith or belief in a particular doctrine, that by

itself is not conclusive or decisive. What are essential parts

of religion or religious belief or matters of religion and

religious practice is essentially a question of fact to be

considered in the context in which the question has arisen

and the evidence- factual or legislative or historic-

presented in that context is required to be considered and a

decision reached.”

1859. It would also be useful to refer the observations made

in para 91 of the judgment :

“91. The Court, therefore, while interpreting Articles 25

and 26 strikes a careful balance between the freedom of the

individual or the group in regard to religion, matters of

religion, religious belief, faith or worship, religious

practice or custom which are essential and integral part

and those which are not essential and integral and the need

for the State to regulate or control in the interest of the

community.”

1860. In Durgah Committee, Ajmer Vs. Syed Hussain Ali

AIR 1961 SC 1402, the Constitution Bench said :

“While we are dealing with this point it may not be

out of place incidentally to strike a note of caution and

observe that in order that the practices in question should

be treated as a part of religion they must be regarded by

the said religion as its essential and integral part;

otherwise even purely secular practices which are not an

essential or an integral part of religion are apt to be

clothed with a religious form and may make a claim for

1961

being treated as religious practices within the meaning of

Art. 26. Similarly, even practices though religious may

have sprung from merely superstitious beliefs and may in

that sense be extraneous and unessential accretions to

religion itself. Unless such practices are found to constitute

an essential and integral part of a religion their claim for

the protection under Art. 26 may have to be carefully

scrutinised; in other words, the protection must be confined

to such religious practices as are an essential and an

integral part of it and no other.”

1861. In the above judgement, the Court also held:

“If the right to administer the properties never vested in

the denomination or had been validly surrendered by it or

has otherwise been effectively and irretrievably lost to it,

Art. 26 cannot be successfully invoked.”

1862. The Court further held:

"It is obvious that Art. 26 (c) and (d) do not create rights in

any denomination or its section which it never had; they

merely safeguard and guarantee the continuance of rights

which such denomination or its section had. In other

words, if the denomination never had the right to manage

the, properties endowed in favour of a denominational

institution as for instance by reason of the terms on which

the endowment was created it cannot be heard to say that

it has acquired the, said rights as a result of Art. 26(c)

and (d), and that the practice and custom prevailing in

that behalf which obviously is consistent with the terms of

the endowment should be ignored or treated as invalid and

the administration and management should now be given

to the denomination. Such a claim is plainly inconsistent

1962

with the provisions of Art. 26."

"If the practice in question is purely secular or the affairs

which is controlled by the statute is essentially and

absolutely secular in Character, it cannot be urged that

Art. 25(1) or Art. 26(b) has been contravened. The

protection is given to the practice of religion and to the

denomination's right to manage its own affairs in matters

of religion."

"Art. 26(b) relates to affairs 754 in matters of religion such

as the performance of the religious rites or ceremonies or

the observance of religious festivals and the like; it does

not refer to the administration of the property at all.

Article 26(d), therefore, justifies the enactment of a law to

regulate the administration of the denomination's property

and that is precisely what the Act has purported to do in

the present case. If the clause “affairs in matters of

religion” were to include affairs in regard to all matters,

whether religious or not the provisions under Art. 26(d)

for legislative regulation of the administration of the

denomination's property would be rendered illusory."

1863. Following the above decision in State of Rajasthan

Vs. Sajjanlal Panjawat and others, 1974 SCC (1) 500 the

Court held:

“Bearing in mind the scope of clauses (b) and (d) of Art.

26 as expounded in the decisions of this Court, if, as we

have held, the right of management of Rikhabdevji temple

is lost as it is vested in the State. The respondents cannot

complain of any infringement of their fundamental rights to

manage and administer its affairs, and as such the High

Court was in error in giving the impugned directions.”

1963

1864. Considering as to what "practices" would constitute

part of "religion" in Durgah Committee, Ajmer Vs. Syed

Hussain Ali (supra) a Constitution Bench of the Apex Court in

para 33 of the judgment held:

“ …....in order that the practices in question should be

treated as a part of religion they must be regarded by the

said religion as its essential and integral part; otherwise

even purely secular practices which are not an essential or

an integral part of religion are apt to be clothed with a

religious form and may make a claim for being treated as

religious practices within the meaning of Art. 26. Similarly,

even practices though religious may have sprung from

merely superstitious beliefs and may in that sense be

extraneous and unessential accretions to religion itself.

Unless such practices are found to constitute an essential

and integral part of a religion their claim for the protection

under Art. 26 may have to be carefully scrutinised; in other

words, the protection must be confined to such religious

practices as are an essential and an integral part of it and

no other.”

1865. In para 37 with reference to the scope of Article 26 (c)

and (d), the Court said:

“It is obvious that Art. 26(c) and (d) do not create rights in

any denomination or its section which it never had; they

merely safeguard and guarantee the continuance of rights

which such denomination or its section had. In other

words, if the denomination never had the right to manage

the properties endowed in favour of a denominational

institution as for instance by reason of the terms on which

the endowment was created it cannot be heard to say that it

1964

has acquired the said rights as a result of Art. 26(c) and

(d), and that the practice and custom prevailing in that

behalf which obviously is consistent with the terms of the

endowment should be ignored or treated as invalid and the

administration and management should now be given to the

denomination. Such a claim is plainly inconsistent with the

provisions of Art. 26. If the right to administer the

properties never vested in the denomination or had been

validly surrendered by it or has otherwise been effectively

and irretrievably lost to it Art. 26 cannot be successfully

invoked.

1866. Next comes Gedela Satchidananda Murthy (supra)

where the Court reproduced the quotation from Madras High

Court's judgment in Pidugu Narasimham (supra) in para 16.

Further in para 17, the Apex Court held:

“Religious practices vary from State to State, region to

region, place to place and sect to sect. When the legislature

makes a legislation, the existing state of affairs and the

basis on which such legislation has been made would be

presumed to have been known to it. Whereas the property

for construction of a samadhi or tomb by itself may not

amount to a permanent dedication involving public

character of such institution, a distinction must be borne in

mind about a tomb constructed on the samadhi of an

ordinary man and a saintly person. In a case falling within

the latter category, the answer to the question, in our

opinion, should be rendered in the affirmative.”

1867. In Raja Muttu Ramalinga Setupati Vs.

Perianayagum Pillai, 1 IA 209 (p. 234) the Privy Council held:

"The important principle to be observed by Courts in dealing

1965

with constitution and rules of religious brotherhoods attached to

Hindu Temples is to ascertain, if possible, the special laws and

usages governing the particular community whose affairs

have become subject of litigation."

1868. It further observed: "The subject of devastanum lands

is of a great importance to the happiness of the people, and the

attention paid to the interest of the pagodas …….. has been

attended with most beneficial consequences to the people in

different parts of peninsula" (i.e India).

1869. In Sarangadeva Periya Matam v. Ramaswami

Goundar (supra), relying on Pramatha Nath Mullick v.

Pradhyumna Kumar Mullick (supra), Counsel for the

Respondents therein submitted that a math, like an idol, has a

juridical status with the power of suing and being sued. Hon'ble

Supreme Court accepted this contention and held:

“Like an idol, the math is a juristic person having the

power of acquiring, owning and possessing properties and

having the capacity of suing and being sued. Being an ideal

person, it must of necessity act in relation to its temporal

affairs through human agency.” See Babajirao v.

Luxmandas, (1904) ILR 28 Bom 215 (223). It may acquire

property by prescription and may likewise lose property

by adverse possession."

1870. In Kamaraju Venkata Krishna Rao (supra), the

controversy before the Hon’ble Apex Court was whether a tank

can be considered as a charitable institution under Section 2 (E)

of the Andhra Inams (Abolition and Conversion into Ryotwari

Act) 1956. Hon’ble Court quoted from a DB judgment of the

Mysore High Court, V. Mariyappa Vs. B.K. Puttaramayya,

ILR (1957) Mys 291:AIR 1958 Mys 93:

1966

“The maintenance of Sadavartas, tanks, seats of learning

and homes for the disabled or the destitute and similar

institutions is recognized by and well known to Hindu Law,

and when maintained as public institutions they must be

taken to have a legal personality as a Matha or the deity in

a temple has, and the persons in charge of the Management

would occupy a position of trust.”

1871. There Court also held, when maintained as public

institutions, then, not only temples and mutts, but also

sadavartas and tanks etc take up a legal personality. An excerpt:

"It has been held that though Mutts and temples are the

most common forms of Hindu religious institutions,

dedication for religious or charitable purposes need not

necessarily take one of these forms and that the

maintenance of Sadavartas, tanks, seats of learning and

homes for the disabled or the destitutes and similar

institutions are recognised by and well known to Hindu

Law and when maintained as public institutions, they

must be taken to have a legal personality as a Matha or

the deity in a temple has, and the persons in charge of the

management would occupy a position of trust."

1872. In the above holding, there is a presumption that Mutts

and temples, when maintained as public institutions, take up a

legal personality - and this proposition is extended to the case of

sadavartas and tanks etc.

1873. In Pooranchand Vs. The Idol Shri Radhakrishnaji &

another AIR 1979 MP 10, a Division Bench considered and

explained meaning of the term “religious endowment” and said

that dedication of the property for religious purposes such as

establishment and worship of an idol is a religious endowment

1967

and consequently a trust. Regarding the capacity of filing suit by

an idol through a next friend, it observed in para 8 of the

judgment:

“In our opinion, the proposition, that an idol or deity is a

juristic person and can sue as such admits of no doubt, as

it has been established by a series of authorities that an

idol as a juristic person, can sue through a next friend.”

1874. Considering the nature of property dedicated for use as

“Dharamchatra”, resting place for the travellers and pilgrims, in

Thayarammal Vs. Kanakammal (supra), the Court in para 16

of the judgment said:

“16. A religious endowment does not create title in

respect of the property dedicated in anybody's favour. A

property dedicated for religious or charitable purpose

for which the owner of the property or the donor has

indicated no administrator or manager becomes res

nullius which the learned author in the book (supra)

explains as property belonging to nobody. Such a

property dedicated for general public use is itself raised

to the category of a juristic person. Learned author at p.

35 of his commentary explains how such a property vests in

the property itself as a juristic persons. In Manohar

Ganesh Tambekar v. Lakhmiram Govindram it is held that:

(ILR p. 263)

“The Hindu law, like the roman law and those

derived from it, recognises, not only corporate bodies

with rights of property vested in the corporation

apart from its individual members, but also the

juridical persons or subjects called foundations.”

(emphasis supplied)

1968

The religious institutions like mutts and other

establishments obviously answer to the description of

foundations in Roman law. The idea is the same, namely,

when property is dedicated for a particular purpose, the

property itself upon which the purpose is impressed, is

raised to the category of a juristic persons so that the

property which is dedicated would vest in the persons so

created. And so it has been held in Krishna Singh v.

Mathura Ahir that a mutt is under the Hindu law a juristic

person in the same manner as a temple where an idol is

installed.” (emphasis added)

1875. In Sri Iswar Dashabhuja Thakurani & others Vs.

Sm. Kanchanbala Dutta & others AIR 1977 Cal. 473, a Single

Judge of Calcutta High Court in para 17 and 18 held:

“17. A Hindu deity is a juristic person and has the

right to sue or be sued. There are preponderance of

decisions to the effect that a shebait has a right on his own

to institute and proceed with the suit on behalf of the

deities making other shebaits as parties to the suit. On the

death of Hari Mohan Roy, Rash Behari Roy became one of

the shebaits jointly with other defendants. So on his own

right Rash Behari Roy can, not only bring a suit but also

proceed with the suit on behalf of the plaintiff deities as a

prospective shebait in case of family endowment even

though not appointed by Court as guardian, can maintain a

suit on behalf of the deity. This is more so when a

prospective shebait brings a suit on behalf of the idol

making all other shebaits as parties to the suit. (AIR 1966

Pat 235, Ram Ratanlal v. Kashinath Tewari). In a case

reported in AIR 1931 Cal 776 (Girih Chandra v. Upendra

1969

Nath) it has been held that a person interested in a private

trust as a member of the family and who has further the

prospect of holding the office of shebait, can maintain a

suit challenging the alienation of debutter properties by a

shebait. A future shebait can maintain a suit to have it

declared that alienation made by a shebait is unauthorised

and does not affect the deity.

18. Rash Behari Roy is not only a shebait but also a

member of the settlor's family. In Nirmal Chandra v. Jyoti

Prosad reported in 45 Cal WN 709: (AIR 1941 Cal 562) it

has been held that a shebait as a party interested in the

endowment can bring an action. In the first place a co-

shebait can bring a suit on the principle that a suit on

behalf of the deity can be brought by some of the co-

shebaits that the rest are unwilling to join the plaintiff or

have done acts precluding them from doing so. In the

second place it can be justified on the ground that the deity

can sue through a next friend who has no interest adverse

to it and it is immaterial that such next friend happens to be

one of the shebaits.

“In respect of a debutter in this country a founder or

his heirs may invoke the assistance of a judicial Tribunal

for the proper administration thereof on the allegation that

the Trusts are not properly performed.”

1876. In Profulla Chorone Requitte Vs. Satya Choron

Requitte AIR 1979 SC 1682 the Court said :

“Property dedicated to an idol vests in it in an ideal sense

only; ex necessitas, the possession and management has

to be entrusted to some human agent. Such an agent of

the idol is known as Shebait in Northern India. The legal

1970

character of a Shebait cannot be defined with precision

and exactitude. Broadly described, he is the human

ministrant and custodian of the idol, its earthly spokesman,

its authorised representative entitled to deal with all its

temporal affairs and to manage its property.”

1877. Hon'ble Bose J in State of West Bengal Vs. Anwar

Ali Sarkar (supra), about development of Hindu Law, observed

in para 84:

“Much of the existing Hindu law has grown up in that way

from instance to instance, the threads being gathered now

from the rishis, now from custom, now from tradition. In

the same way, the laws of liberty, of freedom and of

protection under the Constitution will also slowly assume

recognisable shape as decision is added to decision. They

cannot, in my judgment, be enunciated in static form by

hidebound rules and arbitrarily applied standards or

tests.” (para 84)

1878. It was also observed that dedication in Hindu Law do

not require acceptance of property dedicated for a religious or a

public purpose.

1879. Learned counsels for the Muslim parties, however,

submit that in view of plethora of legal authorities it is now

beyond doubt that a Hindu idol, duly consecrated is a legal

person, but they further submit that same thing would not apply

to a place which has no such definite concept. The question

raised obviously is not only interesting but important and has far

reaching consequences. It has to be considered very cautiously

and carefully.

1880. So the question now is, whether a place can be a Deity

or not. Some of the authorities already referred, in our view,

1971

answer this question. In Ram Jankijee Deities & Ors. (supra)

the Apex Court in para 14 of the judgment referred to Padam

Puran and observed that a Swayambhu or self-revealed image is

a product of nature and it is Anadi or without any beginning and

the worshippers simply discover its existence and it do not

require consecration or Pratistha.

1881. Sri R.L.Verma, learned counsel for the defendant no.3

however submitted that a Swayambhu Deity is only one i.e. the

Salgram Shila which depicts Lord Narayana i.e. Vishnu

Bhagwan and nonelse. He could not dispute that Hindu worship

several places like Kedarnath (State of Uttarakhand); Vishnupad

temple at Gaya; rivers like "Sangam" at Allahabad (U.P.);

natural formation of snow as "Linga" at Amarnath (State of

Jammu and Kashmir); Fire Hills (Jawala Ji) in Himachal

Pradesh;m Goverdhan (Mathura (U.P.); etc. as Swayambhu

Deity.

1882. How and what manner the people should believe a place

or an image having supreme power to cherish the wishes of

worshipper has to be considered from the belief of the

worshippers and cannot be placed in a straight jacket formula. In

para 15 of the judgment in Ram Jankijee Deities & Ors.

(supra), the Apex Court said that the question must be decided

with reference to the view of the class of people who take part in

the worship. If they believe in its religious efficacy, in the sense

that by such worship they are making themselves the object of

the bounty of some super-human power, it must be regarded as

"religious worship". It further says that if the public or that

section of the public who go for worship consider that there is a

divine presence in a particular place and that by offering

worship there, they are likely to be recipients of the blessings of

1972

God, it has the essential features of a temple. In para 16 of the

judgment the Apex Court further observed that if the people

believe in the temples' religious efficacy no other requirement

exists as regards other aspects. The Court observed that it is not

a particular image which is a juridical person but it is a

particular bent of mind which consecrate the image. There is no

apparent reason to deny the status of Deity to a place which is

worshipped by a large section of people as sacred and pious

being the birthplace or the place of manifestation which

normally is the term used when according to Hindu belief the

Lord of Universe takes natural form i.e. human being or

otherwise for the benefit of the people at large. It is in this

context ten incarnations of Lord Vishnu are treated.

1883. The above discussion and the authorities show the

concept of idol, Deity, religious endowment, their legal status,

manner in which they are worshipped as also the concept of

temple etc., as it is written, preached and practised by Hindus as

per their ancient scriptures, and also as considered and

simplified by various Courts from time to time. This is how

plethora of authorities are there, some of which, on various

aspects, we have referred hereinabove. Various terms like

"idol", "deity", "temples", "Math", "religious endowments" etc.,

though in one or the other manner have interconnection and

sometimes integrally woven also but still they have different

context, concept, meaning etc. altogether. Hindu law

comprehends various notions of all the above concepts and

much more. There are several shades and nuances of these

terms. They are not mere terms of art but are living concept and

a huge mass actually live and virtually has merged and absorbed

itself therein. These terms are their identity, perception, source

1973

of life, inspiration and zeal to live and what not. It is really very

difficult to concise them in a few words or norms. While

discussing Issue No. 17 (Suit-3), we have already dealt with the

terms "religion" and "Math" but to some extent, it is true that

confining the word "religion" in a definition is one of the most

arduous and complicated task.

1884. One of the basic thing in religious experience is a

unique feeling, a solemn reverend attitude. It denotes the insight

conviction of human being that there is something entirely

transcending everything human. Core of the religion is "belief",

and, the manner of expressing that belief, i.e. overt

performances, sometimes called "acts of worship". The acts of

worship do vary. This variance is denoted sometimes in terms of

different religions or faith like Hindu, Muslim, Christian etc.

and sometimes different sects within the same group of religion.

1885. There is no certainty in the ancient Hindu scriptures as

to whether the concept of worship in the religion commenced

with the natural forces, like sun, air, water, sky etc. or it was

contemporary with the image worship. One of the set of scholars

believe that there was no idol worship in Vedic days, but there is

another set of scholars who have their own reservations about

the said opinion. We have referred to certain Brahmin literature

which contain references of idols and temples even in Vedic

days. This, however, is a tentative opinion and need not be taken

as a final adjudication. We leave it for further research by

scholars and geniuses to go in further details and find out correct

version. For the present case, we do not find that this aspect will

make any impact on issues concerned. For our purpose suffice it

to hold that image (idol) worship exist since before Christ and

sufficient evidence exist therefor.

1974

1886. We do not find any parallel to the dispute before us

where a particular 'Place' is claimed to be a deity, a juridical

personality in the shape of an undefined idol, by itself a temple,

for the reason of belief of Hindu public that Lord Rama,

incarnation of Lord Vishnu, was born thereat and this divine

manifestation of the Supreme Lord at a particular place make it

sacred and due to belief of Hindu people that God resides there

and the 'Place' possesses all such divine and supreme power so

as to cherish the wishes of the people and salvation to those who

come to worship and Darshan of such place. It is stressed that

this itself is sufficient to make the 'Place' a deity and satisfy the

requirement of the legal personality. The proposition appears to

be quite simple but if we put on tests with the precedents,

religious and legal, it become difficult to be answered

simplicitor.

1887. What would be the meaning of word “Place” and what

shall be its extent? Whether it would be a small place which

normally is required for birth of a human being or whether it

will cover an area of the entire room, house, locality, city or

sometimes one can say even more than that. We know that

Hindus worship rivers and lakes like, Ganga, Yamuna,

Narmada, Mansarovar etc. They are very sacred and pious. At

several places a number of temples etc. on the bank or near the

said rivers have been constructed. The very origin of such

sacred rivers is also a place of worship for Hindus like,

Gangotri, Yamunotri (State of Uttaranchal) and Amarkantak

(for river Narmada). Can it be said that the entire length these

rivers cover would constitute and satisfy the requirement of a

"juristic personality". It is not out of place that at several places,

the temples of Ganga, Narmada, Yamuna etc. have been

1975

constructed and they are religious endowments in their own

rights, enjoy all such legal rights and obligations etc. as are

available to such Endowments. Similarly certain hills or

mountain or hilly terrains as such are treated to be the places of

worship like, Kailash, Gobardhan, Kamathgiri etc.

1888. When asked theses questions, learned counsels for

Hindu parties also felt difficult to reply. Sri M.M.Pandey

submitted that in the present dispute, it is the belief of the Hindu

people that the fort of King Dashrath situated at Ayodhya

included the part of the building wherein Lord Rama was born

according to Hindu belief and the disputed area covered that

house. It is believed that it is this place which is so pious and

sacred for Hindu people being the birthplace of Lord Rama and,

therefore, in this particular case, it is not necessary to go into

larger question since it is not the claim of the Hindu parties that

the entire city of Ayodhya or the entire locality is birthplace of

Lord Rama. He was born at Ayodhya is a well known fact. In

Ayodhya, it is the disputed place where the Lord of Lords was

manifested in the form of natural person and, therefore, it is

believed to be the birthplace of Lord Rama by Hindus for time

immemorial and they visit it to worship and Darshan. This

satisfy the requirement of a "deity". He submits that "deity" in

the name of birthplace of Lord Rama is a legal person

considering the concept of legal personality of Hindu deity as

discussed above. It is evident that it is a place where the public

visit it as a matter of right, offer Darshan, Pooja etc.

continuously and from time immemorial.

1889. The submission is not wholly without substance. The

relevant evidence need be analyzed in the light of the principles

in general which discern from the discussions above, which in

1976

brief may be culled out as follows.

1890. There exist a Supreme Being which controls everything

and fulfills the wishes and salvation to the human beings.

Hindus believe that the Supreme Being manifest himself in

human form (incarnation) with all the powers of Supreme Being

subject to self imposed human limitations. This reincarnation or

manifestation is known as "Swayambhu". The place of

reincarnation is treated sacred. This kind of belief that the place

become sacred which relates to birth or some other activities of

a Holy sole is common in other religions also like, Mekka in

Islam, Bethlehem/Jerusalem in Christianity.

1891. The concept of deity is deeply embedded amongst

Hindus. The Hindu Dharma has elevated the concept of

sacredness into an object of divinity fit for worship. However,

this is only symbolic. A Hindu does not worship the idol or the

material body but it is the eternal spirit of the deity and the

image is a mere symbol. The incarnation of Mantras peculiar to

a particular deity causes manifestation of a deity. The idols or

images which are man made are consecrated with the spirit of

Supreme Being through Vedic rights. The process is known as

"Pran Pratistha". The Supreme Being is bodyless, shapeless and,

therefore, through the concept of images it is visualized and

worshipped.

1892. The deity, i.e., the consecrated image or the

Swayambhu deity has a juridical status. Law recognises its

power of suing and being sued. This power can be exercised by

the person who is entrusted with its care and management

normally called "Shebait". In the context of Shebait the deity is

treated to be an "infant heir" or "with the status of a minor"

since it cannot act on its own.

1977

1893. The deity is a class by himself conceived of a living

being and is treated like a master of the house. The property

dedicated to a deity belongs to it and not to Shebait though is

managed by Shebait as a trustee or its manager who has no

otherwise right into property except that it can be managed for

the benefit of the deity.

1894. A temple is the house of the deity. Even if the image is

broken or otherwise get damaged, the Supreme Being continued

to exist and by replacement of the image that continuity is

maintained symbolically. A temple and deity is res extra

commercium. Presence of idol is not decisive to ascertain the

status of a temple.

1895. The worshippers are the beneficiaries though in a

spiritual sense.

1896. If the public goes for worship considering that there is

a divine presence and offer worship thereat believing that they

are likely to be the recipient of the bounty of God then it satisfy

the test of a temple. Installation of an idol or the mode of

worship are not the relevant and conclusive test.

1897. It leaves no doubt in our mind that according to the

well recognised and accepted concepts of Hindu Law in regard

to deity and idol, it cannot be disputed now that an idol is a

juridical person, can sue and be sued, can acquire property and

deal with it in a manner it likes though obviously this user is

through a Shebait or the person who takes care of the idol since

it cannot act on its own not being a natural person.

1898. Besides, to constitute an idol, a deity, the concept of

Pran Pratishtha and that too in a particular manner is not always

conclusive and is not the only test. In the case of a "Swayambhu

deity", the Shastrik procedure of Pran Pratishtha as such is not at

1978

all required. A deity can be in the form of an idol or even in

natural form like stone, wood, earth, river, mountain etc. The

only requirement in our view would be that in case of place, it

must be ascertainable as to what place is believed to be sacred

and pious by the worshippers.

1899. The pivotal requirement is that the Hindus must

believe the existence of supreme power therein, must be

worshipping it with the belief of getting of attainment and

fulfillment of wishes due to the divine powers existing thereat

and this belief must have continued for time immemorial and

may be in the form of a continued custom, tradition etc.

1900. The learned counsels appearing for various Hindu

parties unanimously contended that the place in dispute has

always been believed to be the birthplace of Lord Rama where

Lord Vishnu manifested himself in human form as incarnation

and, therefore, it is a place which possess the supreme and

divine powers capable of fulfilling of wishes of the worshippers

of mere Darshan thereof and visit the place. They submit that

since the place being the birthplace of Lord Rama is most pious

and with full of divinities to Hindus, this has always been

visited by Hindus for Darshan and worship as such, hence the

requirement of any idol etc. thereat of Lord Rama cannot be

insisted upon. Mere placement of an idol thereat is nothing but a

symbolic act of Hindus to provide more concentration for

worship etc. but the absence of an idol shall not destroy the

status of deity to the "Place" being divine and holy to Hindus.

The Place is a deity and it does not require observance of

Shastrik procedure of 'Pran Pratishtha' since this divinity of

'Place' makes it a "Swayambhu deity" capable of worship by the

believers. This status is non destructible, permanent, and can

1979

neither be altered nor otherwise be damaged or diminished or

extinguished by an act of human being. It is a perennial and

continued status of the Place concerned.

1901. The evidence to show that the Hindu people used to

visit the fort of Lord Rama and its nearby area believing it to be

the birthplace of Lord Rama find mention with number of books

of authorities, some of which we have already discussed in the

course of discussing issues pertaining to "date of construction"

etc. Much more we shall discuss while considering issue

pertaining to birth place, existence of temple etc. But here some

evidence necessary for the issues in question has to be seen.

1902. Goswami Tulsi Das in his "Ramcharitmanas" has

referred the observance of a grand festival on the day of birth of

Lord Rama at Ayodhya. The worship by Hindus in the place

called fort of Lord Rama has been referred in the Travellers

Account of William Finch.

1903. Tieffinthaler has specifically observed the manner in

which the Hindu people used to worship at the place in dispute,

i.e., by laying prostrate and making 'Parikrama'

(circumambulation) around the building. This is a unique feature

of this case. At the time of Tieffinthaler admittedly the disputed

building had come into existence and was standing thereat. It

was known as a mosque having been built by a muslim ruler.

Tieffinthaler has termed it as "a muslim temple with triple

domes". However, there existed a Bedi, i.e., the cradle for which

the Hindus' believe that there was a house where Lord Vishnu

manifested and reincarnated in the form of Ramlala. Then he

mentioned, "however, there still exists some superstitious cult in

some place or other. For example, in the place where the native

house of Ram existed, they go around 3 times and prostrate on

1980

the floor." After about hundred years by which time the

premises in dispute was divided by an iron grilled wall with an

indication that the muslims may worship in the inner courtyard

and the Hindus may continue to worship in the outer courtyard,

in actuality the Hindus continue with their practice of entering

the inner courtyard and worshipping thereat in one or the other

manner. This is evident from some documents which we are

discussing hereinbelow. There is no evidence on record to show

that from 1856 to 1949, at any point of time there was a

restriction effected in such a manner that only the people of one

faith would enter the inner courtyard and not all. It is the

admitted case of muslims and their several witnesses had also

admitted that till 22nd December, 1949 the doors of the iron

grilled dividing wall were never locked. There is nothing on

record to show that by posting a guard or otherwise the entry of

Hindus was restricted in the inner courtyard. Even with respect

to the contention of offering of Namaz, the evidence, which we

will be discussing later on, will show that from 1855 till 1934

atleast there is no evidence whatsoever that Namaz was actually

offered in the inner courtyard of the disputed site. So far as the

outer courtyard is concerned, it is virtually admitted by the

muslim parties that there existed atleast three non Islamic

structures which were visited by Hindus and they also offered

worship thereat. Tieffinthaler has specifically referred to the

place in dispute observing the visit of Hindus thereat. Various

gazetteers, survey reports etc. which we have referred earlier

while discussing the issues pertaining to date of construction

also are similarly worded.

1904. Let us proceed to ponder over some other evidence.

One of the document is an application dated 30.11.1858, Exhibit

1981

20 (Suit-1), submitted by Syed Mohammad, claiming himself to

be Khatib of Janamsthan mosque, i.e., the disputed building. It

says as under:

اہل و تھا رہتا پڑا نشان کے برس صدہا کا استھان جنم بمقام

تھے کرتے پوجا ہنود

^^eqd+ke tue LFkku dk lngk cjl ds fu'kku iM+k jgrk Fkk o

vgys gquwn iwtk djrs Fks ^ (Hindi Transliteration by the

Parties)

"Previously the symbol of Janam had been there for

hundreds of years and Hindus did puja." (E.T.C)

1905. This document refer the above creation in the premises

inside the dividing wall. The existence of divided premises is

clearly mentioned and one Chabutara in outer Courtyard was

already there. The context shows that it talks of creation of a

Chabutra under/near the dome structure and open land in its

front. This document is admitted to plaintiffs (Suit-4) also. This

is the oldest individual and private document which throws light

on the spot situation as prevailed in November 1858 and prior

thereto of the disputed site and building. There is nothing to

contradict it. It is thus clear that even the inner courtyard had

some Hindu religious signs/symbols therein and it used to be

worshipped by Hindus for last several hundreds years.

1906. As already said, P.Carnegy in his report published in

1870 has observed that both worship in the disputed building.

This also fortify the fact that Hindus not only used to go inside

but were also worshipping in the disputed premises.

1907. The dispute pertaining to this place amongst the two

communities is centuries old. Record, prior to 1860 AD, atleast

fortify, continuance of such dispute. In fact, it could not have

been disputed. Several witnesses of the plaintiffs (Suit-4) had

1982

admitted that the Hindus used to come to the disputed place for

worship believing it the birthplace of Lord Rama.

1908. Record of Suit-1885 shows that the defendant no. 2

therein, i.e., Mohd. Asghar, who contested the said suit in his

capacity as Mutawalli of the disputed building (alleged waqf), in

his own written statement admitted that the Chabutara

constructed in the outer courtyard on south east side of the

disputed building used to be attended by Hindus for

worshipping, believing it to be the birthplace of Lord Rama. No

doubt, he also pleaded simultaneously that the said construction

was unauthorised and impermissible but the fact remains that

existence of Chabutara, according to the pleadings, had

continued at least since about 1855 and this position remain

undisturbed till 6th December, 1992. The premises of Mosque, as

depicted by letters ABCD in Suit-4, thus had a structure, non-

Islamic which has been worshipped by Hindus for the last

atleast one and half century.

1909. A place if identified by a name given to the deity by its

worshippers/believers and if it can be shown that it relates to a

divine or otherwise important phenomena related with religious

matters making it a pious and important religious place, it can

be held 'deity' and thereby satisfy the requirement of being a

'juridical person'. Whether such a place reflected by the known

name of the deity is smaller one or larger one, or, what is its

extent, is a different matter but a deity can be known by its

name which its followers/worshippers have given to it. In the

present case the plaintiff no. 2 (Suit-5) is known as "Asthan Sri

Rama Janam Bhumi, Ayodhya". The Hindu believers and

worshippers who go and worship the said place identify it by the

name of Lord Rama's birthplace and this identity ascertain and

1983

admits no doubt in the mind of those who belief, follow and

worship. That being so, we find no reason in denying the status

of deity to the said place and the consequential juridical

personality upon it. It cannot be disputed that property can be

dedicated in the name of the plaintiff no. 2 which can be utilized

for the benefit of the said deity. This of course is subject to the

issues decided in favour of Hindu parties which pertain to the

site in dispute whether is or believed to be the birthplace of Lord

Ram for time immemorial and is being worshipped accordingly.

1910. Whether the idol or deity, worshipped by Hindus, was

consecrated or not, has to be seen from the point of view and

belief of those who worship the idol and not others who had no

such belief. If an idol is faithfully recognised by all those who

believe the idol of a particular deity, it is a deity. In the present

case idol of Lord Rama, and its worship as such satisfy the

requirement of a validly consecrated deity. No further inquiry

need be gone into. We agree with the views expressed by the

Division Bench in Gokul Nath Ji Maharaj (supra) that the

question whether a particular idol is or is not duly consecrated

must depend upon the religious faith and belief of its followers.

We are also fortified in taking the above view from the Apex

Court's decision in Ram Jankijee Deities (supra) where in para

15 it has observed, while quoting and approving the two

decisions of Madras High Court, that the test is not whether it

conforms to any particular school of Agama Shastras. The

question must be decided with reference to the view of the class

of people who take part in the worship. If they believe in its

religious efficacy, in the sense that by such worship they are

making themselves the object of the bounty of some super-

human power, it fulfill the requirement. If the public or that

1984

section of the public who go for worship consider that there is a

divine presence in a particular place and that by offering

worship thereat they are likely to be the recipients of the

blessings of God, it satisfy the requirement of a deity. In fact the

Apex Court in para 16 of the judgment in Ram Jankijee Deities

(supra) went to observe that the people, if believe in the

religious efficacy, no other requirement exists as regards other

areas. It is not a particular image which is a juridical person but

it is a particular bent of mind which consecrate the image.

1911. In Shiromani Gurdwara Prabandhak Committee,

Amritsar Vs. Som Nath Dass (supra) the Court virtually set out

easier guidelines as to how an untangible image or institution or

otherwise can be decided whether a juristic person or not

particularly in religious matters. The Court observed that the

very words "juristic person" cannot get recognition of an entity

to be in law a person which otherwise it is not. In other words it

is not an individual natural person but an artificially created

person which is to be recognised to be in law as such. When a

person is ordinarily understood to be a natural person, it only

means a human person. Essentially every human person is a

person but in the history of the world the concept of different

notions had different times. In sub-countries even human beings

were not treated person in law. Under the Ancient Roman Law a

slave was not a person. He had no right to a family. He was

treated like an animal or chattel. In French colonies also, before

slavery was abolished, the slaves were not treated to be legal

persons. They were later given recognition as legal persons. The

recognition was given later on through an statute. In United

States also African-Americans had no legal rights though they

were not treated as chattel. The Court also quoted the following

1985

passage from Roscoe Pounde's Jurisprudence, Part, IV, 1959

Edition, page 192-93:

“In civilized lands even in the modern world it has

happened that all human beings were not legal persons. In

Roman law down to the constitution of Antoninus Pius the

slave was not a person. ‘He enjoyed neither rights of family

nor rights of patrimony. He was a thing, and as such like

animals, could be the object of rights of property.’ ... In the

French colonies, before slavery was there abolished, slaves

were ‘put in the class of legal persons by the statute of

April 23, 1833’ and obtained a ‘somewhat extended

juridical capacity’ by a statute of 1845. In the United

States down to the Civil War, the free Negroes in many of

the States were free human beings with no legal rights.”

1912. The evolutionary development of a socio-political-

scientific system made it necessary to consider certain non-

human beings as person which were termed as legal person or

juristic person etc. Having said so, the Apex Court in above case

further observed that a juristic person like any other natural

person is in law also conferred with rights and obligations and is

dealt with in accordance with law. The entity acts like a natural

person but only through a designated person, whose acts are

processed within the ambit of law. When an idol was recognised

as a juristic person it was known that by itself it cannot act. Like

the case of a minor where a guardian has been appointed, so in

the case of an idol, a Shebait or manager is appointed to act on

its behalf. In that sense, relation between an idol and Shebait is

akin to that of a minor and a guardian. As a minor cannot

express himself, so the idol, but like a guardian, the Shebait and

manager have limitations under which they have to act. The

1986

Court observed that an idol is a juristic person because it is

adored after its consecration in a temple. The offerings are made

to an idol. The followers recognised an idol to be symbol of

God. Without the idol the temple is only a building or mortar,

cement and bricks which had no sacredness or sanctity for

adoration.

1913. Let us apply these tests in respect to the plaintiffs 1

and 2 in the case in hand. Sri Ramjanambhumi, the place in

dispute is visited by Hindus under the faith and belief that Lord

of Universe Sri Vishnu appeared in his Chaturbhuj Roop before

Queen Kaushalya one of the wife of Kind Dashratha at a

particular date and time mentioned in Balmiki Ramayan as well

as Ramcharitmanas of Goswami Tulsi Das. On the prayer

made by Kaushalyaji Sri Vishnu took the form of Sri Ramlala

and manifested himself in human form. The place, therefore,

bear the spirit and power of Lord of Lords and it is believed that

by visiting the place having its Dashan, i.e., adoration and

worship one will get all happiness and fulfilment of his wishes.

It will confer upon him all merits as well as salvation. The visit

to birthplace itself has been said to be sufficient to confer all the

merits and salvation upon the believer. It is with this faith and

belief it is said that the Hindus are visiting the birthplace of

Lord Rama at Ayodhya since time immemorial and despite of

several adverse situation the belief and worship has continued

unrelented.

1914. It is well settled that faith and belief cannot be judged

through any juridical scrutiny, its a fact accomplished and

accepted by its followers. In fact this faith necessitated the

creation of a unique to be recognised as a juristic person. The

juristic person, in view of the above discussion, it is evidence,

1987

cannot be roped in a defined circle. With the changing thoughts,

changing needs of the society fresh juristic personalties were/are

created from time to time. In the context of Guru Granth Sahib

whether it is a juristic person or not an argument was raised

though an idol can be recognised to be a juristic person but not a

temple and on the same party neither a Gurudwara can be

treated to be a juristic person nor Guru Granth Sahib which is

only a sacred book. Repelling this argument the Apex Court in

Shiromani Gurdwara Prabandhak Committee, Amritsar Vs.

Som Nath Dass (supra) said that Gurudwara or Guru Granth

Sahib cannot be equated with an idol. Sikhism does not believe

in worshipping any idol but that does not mean that Guru Granth

Sahib in order to treat to be a juristic person should be equated

with an idol. When belief and faith of two different religions are

different there is no question of equating one with the other. If

Guru Granth Sahib by itself could stand the test of its being

declared as such, it can be declared to be so. The Court peep

into the fundamentals of Sikh religion though as a matter of

caution observed that to comprehend any religion fully may

indeed be beyond the comprehension of anyone and also beyond

any judicial scrutiny for it has its own limitations. But then it is

added with that silver lining could easily be picked up from the

tenets and dictates of the concerned religion. In the Sikh religion

the Guru is revered as the highest reverential person. The first of

such most revered Guru was Guru Nanak Dev followed by the

succeeding Gurus and the 10th being the last living Guru Gobind

Singh Ji. It is believed that Adi Granth or Guru Granth Sahib

was compiled by the fifth Guru Arjun and it is this book that is

worshipped in all the Gurudwaras. Besides being read, people

go down on their knees to make reverential obeisance and place

1988

their offerings of cash and kind on it, as it is treated and equated

to a living Guru. The composition of Gurus were always

considered sacred by their followers. Guru Nanak said that in

his hymns the true Guru manifested himself, because they were

composed at His orders and heard by Him. The fourth Guru,

Ram Das said, "look upon the words of the true Gurus as the

supreme truth, for God and the Creator hath made him utter the

words." When Guru Arjun formally installed the Granth in the

Hari Mandir, he ordered his followers to treat it with the same

reverence as they treated their Gurus. By the time of Guru

Gobind Singh, copies of the Granth had been installed in most

gurdwaras. He asked his followers to turn to the Granth for

guidance and look upon it as the symbolic representation of the

ten Gurus. The Granth Sahib is the central object of worship in

all gurdwaras. It is with this faith that it is worshipped like a

living Guru. This faith and conviction results, when installed in

a Gurudwara to turn in a sacred place of worship. Sacredness of

Gurudwara is only because of placement of Guru Grath Sahib in

it. It also held that a restrictive meaning to the words juristic

person ought not to be given otherwise it would erase the very

jurisprudence which gave birth to it.

1915. Applying all these observations to the two plaintiffs

we find no hesitation to observe that every condition or

ingredient is fully satisfied so as to confer legal personality upon

the two. In respect to the plaintiff no. 1 the defendants, pro-

mosque parties, have no dispute that an idol duly consecrated

would constitute a legal person and, therefore, their only

objection is that the idol in question being not consecrated in

accordance with the Shastrik laws is not a deity constituting a

legal person. With respect to the plaintiff no. 2 their objection is

1989

much stronger and virtually travels on the same causes as were

argued in Shiromani Gurdwara Prabandhak Committee,

Amritsar Vs. Som Nath Dass (supra) to outclass Guru Granth

Sahib from the status of juristic person. We have already

observed much with respect to the plaintiff no. 1 which in our

view suffice to constitute it a legal person capable of

maintaining a suit through a Shebait or a next friend as the case

may be. The procedure of filing the suit we shall discuss later on

in detail. So far as the place is concerned, it is almost admitted

by most of the witnesses of pro-mosque parties, i.e., of plaintiff

(Suit-4) that Hindus regularly visit Ayodhya for worshipping the

birthplace of Lord Rama and several fairs are also held thereat

periodically wherein a very large number of people across the

country and even abroad come and participate. It is also

admitted by some of the pro-mosque parties witnesses that the

disputed place used to be visited by Hindus believing it to be the

birthplace of Lord Rama. The manner of worship and Darshan

has been explained by the witnesses produced by Nirmohi

Akhara as well as the plaintiff (Suit-5) in one or the other ways.

It is true that most of the part of the evidence of most of the

witnesses is either irrelevant hence inadmissible or otherwise is

not creditworthy which we have pointed out or shall be referring

later as the case may be but that does not mean that the entire

statement of a witness for this reason can be rejected. It is

always permissible to a Court to take out the part of the

statement of a witness which is believable and also sometimes

when the statement amounts to an admission on behalf of party

who has produced that witness, i.e., the part of the evidence of a

witness which is against the party in whose favour the witness is

deposing.

1990

PW-1, Mohd. Hashim

^^22@23 fnlEcj] 1949 dks ftl LFkku dh dqdhZ gqbZ fgUnw

yksx mls jke tUe Hkwfe dgrs Fks vkSj eqlyeku ckcjh efLtn dgrs

gsaaA** ¼ist 40½

“The Hindus called the place attached on 22nd -

23rd December, 1949, Ram Janam Bhumi and the Muslims

call it Babri mosque.” (E.T.C.)

^^tSls eDdk eqlyekuksa ds fy, vgfe;r j[krk gS mlh rjg

v;ks/;k Hkxoku jke dks ysdj fgUnqvksa ds fy, egRo j[krk gSaA**¼ist 44½

“As Mecca holds importance for Muslims, similarly

Ayodhya holds importance for Hindus because of Lord

Rama.”(E.T.C.)

^^fgUnqLrku ls ckgj ds ns'kksa ds fy, yksx Hkh v;ks/;k esa n'kZu ds

fy, vkrs gSaA**¼ist 73½

“People from abroad also come to have darshan at

Ayodhya.” (E.T.C.)

^^;g Bhd gS fd v;ks/;k fgUnqvksa dk ,d rhFkZ LFky gSA - - - -

-;g Bhd gS fd 22 fnlEcj 1949 ls bl Hkwfe ij tks eqdnek esa

eqrnkfo;k gS] fgUnw yksx ns'k&fons'k ls n'kZu djus ds vkrs gSaA**

¼ist 120½

“It is true that Ayodhya is a place of pilgrimage for

Hindus. . . . . . . . . . It is true that from 22nd December,

1949, Hindus come from within the country and from

abroad to have darshan on this land, which is disputed in

litigation.”(E.T.C.)

^^fgUnw yksx fgUnqLrku ds gj dksus esa jgrs gSa muds fy, v;ks/;k

eqrcfjZd gSA**¼ist 128½

“Hindus live in every corner of Hindustan. Ayodhya

is a holy place for them.”(E.T.C.)

^^;g Hkh Bhd gS fd bl ifjdzek dks fgUnw yksx dbZ lkS lkyksa ls

dj jgs gSaa ,d ifjdzek pkSng dks'kh Hkh gSA ,d pkSng dkslh ifjdzek Hkh

1991

gS] ftldks ysus esa ;g ikWap dkslh ifjdzek Hkh 'kkfey gks tkrh gSA ;s

nkuksa ifjdzek;sa nks&rhu fnu ds QdZ esa gksrh gSa] - - - - ;g ifjdzek;sa

flQZ fgUnw yksx djrs gsaa ;g mudh viuh le> gS fd og bls jke tUe

Hkwfe le>dj djrs gSa ;k fdlh vkSj otg ls djrs gSA ;g Hkh Bhd gS

fd bu ekSdksa ij fgUnw yksx dYiokl Hkh djrs gSaa A lk/kw&lUr] o)

vkfn yksx dYiokl djrs gSaa ;g R;ksgkj dkfrZd ds eghus esa vkrk gSA**

¼ist 141½

“It is also true that Hindus have been doing this

parikrama (circumambulation) for hundreds of years.

There is also a parikrama known as 'chaudah kosi'. There

is also a 'chaudah kosi' parikrama in doing which this

'paanch kosi' parikrama also gets done. These two

parikramas are done on the interval of two- three

days. . . . . . . . . . . . Only Hindus do these parikramas. It is

their understanding whether they do so considering it to be

Ram Janam Bhumi or due to any other reason. It is also

true that Hindus also observe 'kalpvaas' on these

occasions. Saints, seers, elderly persons and others observe

'kalpvaas'. This festival is celebrated in the month of

Kartik.” (E.T.C.)

PW-2, Haji Mahboob Ahmad

^^;g Bhd gS fd jkepUnz th dh iSnkb'k v;ks/;k dh gSA tc

ls ;g rqQku mBk gS rc ls ns'k ds dksus dksus ls fgUnw yksx fookfnr

ifjlj dks mudh tUeHkwfe dgrs gSa vkSj iwtrs gSa ojuk mudh lkjh

v;ks/;k gSA igys dud Hkou vkSj tUEk LFkku dks mudh tUeHkwfe dgrs

FksA ;g crk;k x;k tUe LFkku efLtn ls vyx nwljh txg ij gSA**

¼ist 90½

“It is true that Ram Chandra's birthplace is Ayodhya.

From when this turmoil has erupted, the Hindus from

nooks and corners of the country call and worship the

disputed premises as his Janam Bhumi. Otherwise, the

1992

whole of Ayodhya is theirs. Earlier, they called the Kanak

Bhawan and the Janam Sthan as his birth-land. It was told

that Janam Sthan is at another place, separately from the

mosque.” (E.T.C.)

^^iapdkslh ifjdzek iwjs v;ks/;k esa gS - - - - - -vke rkSj ls lfnZ;ksa

esa gksrh gSaA ifjdzek ij HkhM+ gksrh gS dkQh yksx ckgj ls vkrs gSa dkQh

yksx 'kgj ds gksrs gSaA** ¼ist 101½

“Panchkosi Parikrama covers the whole of Ayodhya.

. . . . . . . It usually takes place in winters. The Parikrama

attracts a crowd. A number of people come from outside. A

number of people hail from the city.” (E.T.C.)

PW-3, Farooq Ahmad

^^v;ks/;k esa fgUnw esys gksrs gSa tSls fd jkeuoeh] ifjdzek esyk

vkSj lkou esyk] bu esyksa ij fgUnw yksx bdV~Bk gksrs gSa ;s yksx efLtn

Hkh ns[kus vk;k djrs gSaA bl pcwrjs dks ns[kus dh xjt ls cgqr ls fgUnw

vkSj eqfLye yksx lHkh tkrs gSaA ----------- esys ds oDr Hkh gj etgc ds

yksx pcwrjk ns[kus vkrs FksA** ¼ist 29½

“Hindu fairs are held at Ayodhya such as

Ramnavami, Parikrama Mela and Sawan Mela. Hindus

gather in these fairs. They also come over to see the

mosque. Many Hindus and Muslims used to come over to

see this platform (Chabutara). .......... Even on occasion of

the fairs, people of all religions used to come to see the

platform (Chabutara).” (E.T.C)

PW-4, Mohd. Yaseen

^^og fgUnw yksx vius [;ky ds eqrkfcd bl txg ds n’kZu

Hkxoku jke ds tUe LFkku ds rkSj ij djrs gksxsaA** ¼ ist 70 ½

“In my view, the Hindus must have had the darshan

of this place as birthplace of Lord Rama.”(E.T.C)

^^mudk ;g vdhnk gS fd ;g Jh jke dk tUe LFkku gS

¼vt[kqn dgk fd mudk vdhnk muds lkFk gS½ fgUnw yksx bl txg dks

1993

ikd vkSj ifo= le> dj bldh iwtk djrs gSaA** ¼ ist 71½

“It is their belief that it is the birthplace of Sri Rama

(stated on his own that their belief lies with them). The

Hindus revere this place as sacred and pious.”(E.T.C)

PW-7, Hasmat Ulla Asnsari

^^eSa v;ks/;k dk ewy fuoklh gwaA ogkWa ij lkou dk esyk gksrk

gS ,d ef.k ioZr dk esyk gksrk gS of'k"B dq.M ij Hkh esyk yxrk gS

pSr ds eghus esa jkeuoeh dk esyk Hkh gksrk gSA ;gh dgrs gSa fd

jkeuoeh dk esyk Hkxoku jke ds tUe fnu ds miy{; esa euk;k tkrk

gSA ml ekSds ij ckgj ds yksx Hkh v;ks/;k esa vkrs gSaA - - - - - ogkWa

ifjdzek Hkh gksrh gSaA nks ifjdzek;sa gSa ,d iapdks'kh vkSj ,d pkSng

dks'khA txg txg ls fgUnw yksx vkrs gSa vkSj bl ekSds ij ifjdzek;sa Hkh

djrs gSaA** ¼ist 73½

“I am a native of Ayodhya. Sawan Mela takes place

there and so does Mani Parvat fair. A fair is also organised

at Vashishtha Kund. Ram Navami fair too takes place in

the month of Chaitra. It is said that Ram Navami fair is

organised to commemorate the birth anniversary of Lord

Rama. People even from outside come to Ayodhya on that

occasion. . . . . . . . . Circumambulation also takes place

there. There are two circumambulations, one is called

Panchkoshi and the other Chaudahkoshi. Hindus come

from different places and also do circumambulations on

this occasion.” (E.T.C.)

PW-8, Abdul Ajij

^^;g Bhd gS fd v;ks/;k fgUnqvksa dh ,d rhFkZLFkyh gSA cgqr

nwj&nwj ls fgUnw yksx ogkWa vkrs gSaA** ¼ist 33½

“It is true that Ayodhya is a pilgrimage of Hindus.

Hindus come here from far off places.” (E.T.C)

PW-9, Syed Akhlak Ahmad

^^;g Bhd gS fd v;ks/;k fgUnqvksa dk rhFkZ LFky djds e'kgwj gS

1994

v;ks/;k esa gtkjksa eafnj rks t:j gSaA** ¼ist 3½

"It is true that Ayodhya is famous as pilgrimage of

Hindus. There are certainly thousands of temples in

Ayodhya." (E.T.C.)

^^eSa lqurk gwWa fd fgUnw gtjkr ;g ;dhnk j[krs gSa fd v;ks/;k

mudk tUe LFkku gS v;ks/;k esa Jhjke tUeHkwfe dks oks mudk tUeLFkku

ekurs gSaA** ¼ist 42½

“I hear that Hindus have the belief that Ayodhya is

his birthplace. They believe Sri Ramjanmbhumi at Ayodhya

to be his birthplace.” (E.T.C)

^^v;ks/;k esa gj lky pkSngdkslh vkSj iapdkslh ifjdzek,a gksrh gSA

;g Bhd gS fd buesa yk[kksa fgUnw uaxs ikao Hkkx ysrs gSaA LFkkuh; yksx Hkh

gksrs gSa vkSj ns'k ds nwljs fgLlksa ls Hkh dkQh yksx vkrs gSaA

v;ks/;k esa jkeuoeh dk esyk gksrk gSA yk[kksa esa rhFkZ ;k=h

v;ks/;k vkrs gSa vkSj Hkxoku Jh jke dk tUe eukrs gSa vkSj eafnjksa dks Hkh

ltk;k tkrk gSA lkou ds eghus esa >wyk esyk Hkh gksrk gSA ;g Hkh ,d

cM+k esyk gSA yk[kksa esa fgUnw yksx ckgj ls vkrs gSaA buds vykok Hkh

rdjhcu gj jkst gh lk/kkj.k rkSj ij Hkh ckgj ls dkQh fgUnw ;k=h rhFkZ

ds fy, vkrs tkrs jgrs gSaA** ¼ist 94½

"'Chaudahkosi' (fourteen kose, one kose being equal

to two miles) and 'Panchkosi' (five kose)

circumambulations are performed every year in Ayodhya.

It is true that lakhs of Hindus participate in them,

barefoot. (They) include local people as well as people

coming over from other parts of the country.

Ramnavami fair is held at Ayodhya. Lakhs of

pilgrims come to Ayodhya and celebrate the birth of Lord

Sri Rama and the temples are also decorated. The 'Jhula'

fair is also held in the month of Shravana. It is also a big

fair. Lakhs of Hindus come from outside. Besides these,

usually almost everyday many Hindu travelers keep coming

1995

from outside for pilgrimage." (E.T.C)

^^eSaus lquk gS fd fgUnw yksx bl chp okys fgLlksa dks Hkxoku jke

dk tUe LFkku vkSj xHkZx`g ekurs gSaA** ¼ist 130½

"I have heard that the Hindus consider this central

part to be the birthplace of Lord Rama & sanctum

sanctorum." (E.T.C)

PW-12, Ram Shankar Upadhyay

“Hkxoku jke dks ge Hkxoku fo".kq dk lk{kkr vorkj ekurs gSA”

(ist&6)

“We regard Lord Rama as a manifest incarnation of

Lord Vishnu.” (E.T.C.)

“ysfdu okLrfodrk ;g t:j gS fd vk;ks/;k ,d rhFkZ gSA”

(ist&7)

“But it is certainly a reality that Ayodhya is a site of

pilgrimage.” (E.T.C.)

“D;ksafd ge lukruh gSA eSus Hkxoku jke dk n'kZu fd;kA”

(ist&17)

“Since I am a Sanatani ( orthodox Hindu), I had a

sight of Lord Rama.” (E.T.C.)

“esjh tkudkjh esa fookfnr LFky vkSj Åij crk;s x;s jke tUe

LFkku ds vykok v;ks/;k esa dksbZ vkSj eafnj ;k txg jke tUe Hkwfe ds

uke ls ugha gSA” (ist&52)

“To my knowledge, except for the disputed site and

Rama Janam sthan mentioned above, there is no temple or

place in Ayodhya in the name of Ram Janam Bhumi."

(E.T.C.)

“Hkxoku jke dk tUe pSr dh jke uoeh dks gqvk Fkk blfy,

mudk tUe fnu eukus ds fy, ;g esyk gksrk gSA” (ist&52)

“Lord Rama was born on Ramnavami of Chaitra; so,

1996

this fair is held to celebrate his birth anniversary.”

(E.T.C.)

“;g Bhd gS fd v;ks/;k dk egRo blfy, gS fd ogka e;kZnk

iq:"kksRre Jh jke dk tUe gqvk FkkA” (ist&53)

“It is correct that Ayodhya holds importance because

Maryada Purushottam Sri Rama( Supreme Being Sri Rama

epitomizing dignified behaviour) was born there.”

(E.T.C.)

“;g Bhd gS fd fookfnr LFky eksgYyk jkedksV esa fLFkr Fkk

--------- dksV dk vFkZ fdyk gksrs gSA eksgYys dk uke jkedksV gS mldk

'kCnkFkZ jketh dk fdyk gks ldrk gS ---------- esjs bYe ls rks bl eksgYys

dks jkedksV ds uke ls gh tkuk tkrk gSA” (ist&58)

“It is correct that the disputed site was situated in

Ramkot Mohalla. ........ Kot means fort. The name of the

Mohalla is Ramkot. It may literally mean the fort of

Ramji ........ To my knowledge, this Mohalla is known only

by the name of Ramkot." (E.T.C.)

PW-13, Suresh Chandra Misra

^^xzUFkksa ds vk/kkj ij ;g rF; vkrk gS fd Jh jke dk tUe

v;ks/;k esa gqvkA** ¼ist 36½

“On the basis of treatises it comes to knowledge that

Sri Rama was born in Ayodhya.” (E.T.C.)

^^eq>s ;g ftKklk Fkh vkSj ;g tkuus dk iz;kl Hkh fd;k fd

Jhjke fdl LFkku ij iSnk gq, FksA yksxksa us eq>s ;g crk;k fd veqd

LFkku ij ;kuh fookfnr LFkku ij Jh jke dk tUe gqvk FkkA**

¼ist 146½

“I had a curiosity and also tried to know at which

place Sri Rama was born. People told me that Sri Rama

was born on a particular place, that is, the disputed site.”

(E.T.C.)

1997

^^iz'u& tks yksx Hkxoku Jhjke dh vkjk/kuk djrs gSa os yksx v;ks/;k dks

mudh tUeLFkyh ekurs gSa\

mRrj& ;g Bhd gSA** ¼ist 177½

“Question:- Do those worshipping Lord Sri Rama regard

Ayodhya as his birth-place?

Answer:- It is true.” (E.T.C.)

PW-23, Mohd. Qasim Ansari

^^;g Bhd gS fd f[kyth ,oa yks/kh oa'k dh gqdwer ds nkSjku vkSj

mlls igys Hkh cgqr ls lwQh Hkkjro"kZ vk;sA [oktk eksbuqn~nhu fp'rh]

fpLr ,d txg gS] ogkWa ds jgus okys FksA ;g 'kk;n lsUV~y ,f'k;k esa

gSA** ¼ist 19½

“It is true that many Sufis came to India during the

reign of Khilji and Lodhi dynasties and even earlier.

Khwaja Moinuddin Chisti was a resident of a place called

Chist. It is perhaps in Central Asia.”(E.T.C.)

^^iapdkslh ifjdzek lky esa ,d ckj gksrh gS ;g 'kk;n ifjdzek

dkfrZd ekg es gksrh gS 'kk;n dkfrZd esys ds vkl ikl gksrh gS ;g

dguk lgh gS fd bl ekSds ij v;ks/;k esa Hkkjh esyk yxrk gSA ;g

dguk lgh gS fd yk[kksa dh rknkn esa rhFkZ ;k=h n'kZu djus dks vkrs gSaA

- - - - - -yk[kksa yksx iapdkslh ekxZ ij ifjdzek djrs gSaA ;g dguk lgh

gS fd tks rhFkZ ;k=h ifjdzek djrs gSa os guqekux<+h] dud Hkou vkSj

jketUeHkwfe dk n'kZu Hkh djrs gSaA - - - - - -eSa pkSng dkslh ifjdzek ds

ckjs esa Hkh tkurk gwWAA bl pkSng dkslh ifjdzek ekxZ esa v;ks/;k vkSj

QStkckn vkrs gSa ;g dguk Hkh lgh gS fd pkSng dkslh ifjdzek Hkh

dkfrZd ds ekg esa gksrh gSA ;g dguk Hkh lgh gS fd bl ifjdzek esa Hkh

yk[kksa dh la[;k esa rhFkZ ;k=h vkSj HkDrx.k f'kjdr djrs gSaA** ¼ist 34½

“The ‘Panchkosi’ (distance of five kose, one kose

being equal to two miles) circumambulation is performed

annually, possibly in the ‘Kartika’ month, possibly around

the Kartika fair. It is true that a very big fair is held at

Ayodhya on this occasion. It is true that lakhs of pilgrims

1998

come to have darshan. . . . . . . . . . . . . Lakhs of people

perform circumambulation on the ‘Panchkosi’ path. It is

true that such pilgrims, who perform circumambulation,

also have darshan of Hanumangarhi, Kanak Bhawan and

Ramjanmbhumi . . . . . . . . . . I also know about

‘Chaudahkosi’ (distance of fourteen kose)

circumambulation. Ayodhya and Faizabad fall in this

‘Chaudahkosi’ circumambulation path. It is also true that

the ‘Chaudahkosi’ circumambulation also commences in

the month of ‘Kartika’. It is also true that lakhs of pilgrims

and devotees participate in this circumambulation as

well.” (E.T.C)

^^;g Bhd gS fd fgUnw yksx ftls eSa ckcjh efLtn dgrk gwWa mls

tUeHkwfe dgrs gSaA** ¼ist 36½

“It is true that what is termed as Babri mosque by

me, is called Janmbhumi by Hindus.” (E.T.C)

^^;g Bhd gS fd pSr esa Hkh jke uoeh dk esyk gksrk gSA ;g Hkh

Bhd gS fd ml esys esa yksx yk[kksa dh la[;k esa vkrs gSa vkSj dkQh HkhM+

HkkM+ gksrh gSA^^ ¼ist 39½

“It is true that the Ramnavami fair is also held

during ‘Chaitra’. It is also true that lakhs of people come

in that fair and a huge gathering takes place." (E.T.C)

^^lkou esyk Hkh v;ks/;k esa cgqr /kwe/kke ls gksrk gSA^^ ¼ist 39½

"Sharavana fair is also held with great pomp and

show at Ayodhya." (E.T.C)

^^;g Bhd gS fd bl esys esa tks vkrs gSa] lj;w esa Luku djrs gSa]

dud Hkou eafnj] tUeLFkku eafnj vkSj tUeHkwfe dk n'kZu djrs gSaA^^

¼ist 39½

"It is true that the visitors of this fair, take a holy dip

in the Saryu and have darshan of Kanak Bhawan temple,

Janmsthan temple and Janmbhumi." (E.T.C)

1999

^^;g dguk Bhd gS fd mijksDr rhuksa esys eSa viuh ;knnk'r ls

ns[krk pyk vk jgk gwaA ;g dguk lgh gS fd ;g rhuksa esys essa yk[kksa dh

la[;k esa J)kyq vkrs gSa dqN jsy ls vkrs gSa] dqN cl ls vkrs gSa vkSj

dqN viuh xkM+h ls vkrs gSa igys dqN yksx cSyxkM+h vkSj ?kksMks ls Hkh

vkrs FksA - - - - - -;g Bhd gS fd tks fookfnr txg gS mls fgUnw yksx

tUe Hkwfe dgdj viuk gd trk jgs gSaA - - - - - - -;g dguk Bhd gS

fd mijksDr esys ds fnuksa esa fgUnw vkSj eqlyekuksa ds chp HksnHkko [kRe

gks tkrk gS vkSj yksx I;kj ls jgrs FksA** ¼ist 39&40½

"It is true that I have seen these three fairs since my

memory. It is true that lakhs of devotees visit on occasion

of these three fairs, some come by train, some by bus and

some by their private vehicles. Earlier some people used to

come by bullock-carts and horses as well . . . . . . . . .It is

true that by terming the disputed site as Janmbhumi, the

Hindus are staking their right over the same . . . . . . . . . It

is true that the mutual differences between Hindus and

Muslims stood extinguished during the aforesaid fairs and

people used to live in harmony.” (E.T.C)

^^;g Bhd gS fd v;ks/;k dks fgUnqvksa dk ,d rhFkZ LFky ekuk

tkrk gSA^^ ¼ist 41½

“It is true that Ayodhya is considered a pilgrimage of

the Hindus." (E.T.C)

^^rhFkZ LFkku igys Hkh Fkk -------- ;g Bhd gS fd fgUnq yksx Hkxoku

jke dks viuk nsork ekurs gSaA ;g dguk lgh gS fd fgUnqvksa dk ,slk

fo'okl gS fd Hkxoku jke v;ks/;k esa iSnk gq, FksA ;g Hkh dguk Bhd gS

fd v;ks/;k esa Hkxoku jke ls lEcfU/kr dbZ dq.M vkSj LFkku gSaA**

¼ist 42½

It was a pilgrimage in past as well ....... It is true

that Hindus consider Lord Rama, their God. It is true that

it is the belief of Hindus that Lord Rama was born in

Ayodhya. It is also true that there are many ‘Kundas’ and

2000

places related to Lord Rama in Ayodhya.” (E.T.C)

^^eSa tkurk gwWa fd Hkxoku jke fgUnqvksa ds vkjk/; nsork gSaA - - -

- - - eSaus ,slk lquk vkSj i<+k gS fd v;ks/;k dbZ ckj iyVh gS ftlds

vkt Hkh fu'kku ekStwn gSaA - - - - eSaus ,slk i<+k gS fd v;ks/;k nks rhu

ckj iyVh gS ftlds fu'kkukr vkt Hkh ekStwn gSa ftls eSaus ns[kk gSA^^

¼ist 64½

"I know that Lord Rama is the favoured deity of

Hindus. . . . . I have heard and read that Ayodhya has over

turned many times traces of which exist even today. . . . . . .

. . I have read that Ayodhya has overturned two-three times

traces of which are found even today; I have seen them."

(E.T.C.)

^^lj;w unh ds fdukjs ls >qu>qfu;kWa ?kkV rd tks lkeku fn[krk

gS og lc mYVk feyrk gS vFkkZr~ dqvkWa Hkh mYVk feyrk gSA** ¼ist 65½

“All things seen from the river bank of Saryu up to

Jhunjhuniya Ghat are found to be upside down, that is to

say, the well is also found upside down.” (E.T.C.)

OPW-1, Mahant Ramchandra Das Digambar

^^ftl le; f'k[kj fxjk ml le; f'k[kj ds uhps jkeyyk dh

dksbZ ewfrZ ugha Fkh f'k[kj dh uhps dh Hkwfe ij iwtk ikB gksrk FkkA ---------

e/; f'k[kj ds uhps izlwfr Hkwfe] tgka ij Hkxoku jke dk tUe gqvk Fkk

og LFkku FkkA e/; f'k[kj ds uhps dk tks Hkkx xHkZ xg ds #i esa Fkk og

LFkku rFkk mlds pkjks rjQ ml LFkku dks eSa xHkZxg dk LFkku ekurk

gwWaA rhuksa xqEctksa ds uhps dh Hkwfe rFkk ifjdzek ekxZ dh lEiw.kZ Hkwfe

xHkZx`g ds vUrxZr FkhA**¼ist 42½

“When the dome collapsed, there was no idol of

Ram Lala beneath it. ‘Pooja-Paath’ used to be performed

on the land beneath the dome. ........ ‘Prasuti Bhumi’ - the

land where Lord Rama was born – was beneath the middle

dome. I take the part beneath the middle pillar – which

was in the shape of the sanctum sanctorum – as also the

1

2001

place surrounding it, to be the sanctum sanctorum. The

sanctum sanctorum encompassed the land beneath the

three domes and the entire land of the circumambulation

path.” (E.T.C.)

^^jketUeHkwfe LFky ds laca/k esa iwjs nqfu;k ds fgUnqvksa dh vkLFkk

mlh izdkj ls gS tSls eqfLye lEiznk; dh vkLFkk dkck ds lanHkZ esa gSA

jketUeHkwfe eafnj iwjh nqfu;k esa dsoy ,d LFkku ij gS tcfd jke ds

eafnj gtkjksa dh la[;k esa gksaxsaA** ¼ist 54½

“Hindus of the whole world have the same faith in

reference to the place of Ramjanmbhumi as the Muslim

community has in reference to Kaba. The Ramjanmbhumi

temple is only on one place in the whole world but Rama

temples are thousands in number.” (E.T.C.)

^^tUeHkwfe LFky ckgjh rFkk Hkhrjh LFkku rFkk mlds pkjks rjQ

dh Hkwfe dks eS ekurk gwWa ;g lHkh LFkku iwT; LFky gSaA ;g iwjk LFkku

Hkxoku jke dk tUeLFkku gksus ds dkj.k esjs fy, fu"Bk rFkk vkLFkk dk

izrhd gSA** ¼ist 66½

“The Janmbhumi site is considered by me to be the

outer and inner part and the land surrounding it from all

four sides. All these are revered places. This entire place is

a symbol of faith and belief for me on account of being the

birthplace of Lord Rama.” (E.T.C)

^^1934 ds iwoZ esa jkepcwrjk ds n'kZu ds ckn chp ds f'k[kj ds

uhps fLFkfr xHkZxg dk n'kZu djrk Fkk blds vfrfjDr [kEHkksa ij tks

ewfrZ;ka vafdr Fkh mudk n'kZu djrk Fkk rFkk Qwy rqylh iRrh vkfn

p<+krk FkkA - - - - - if'peh fnokj ds lehi ,d vyekjhuqek pht cuh

gqbZ Fkh ml LFkku ij Hkh yksx iwtk lkexzh p<+krs Fks rFkk og LFkku Hkh

xHkZx`g ls lacaf/kr FkkA** ¼ist 97½

“Prior to 1934, after having darshan of

Ramchabutara, I used to have darshan of 'Garbh-grih'

(sanctum sanctorum) situated beneath the mid dome.

2002

Besides this, I used to have darshan of the idols existing

over the pillars and used to offer flower, Tulsi (Holy Basil)

leaves etc. over them. . . . . . . . .. There was a almirah

shaped structure near the western wall. People used to

offer worship articles over there and that place was also

related to 'Garbh-grih' (sanctum sanctorum).” (E.T.C)

^^izR;sd og LFkku] tgka ij ewfrZ jgrh gS] mls xHkZxg ugha dgk

tkrk gS] ftl LFkku ij nsork fo'ks"k izdV gksrk gS] ml LFkku dks

xHkZx`g dgrs gSaA** ¼ist 134½

“Every such place, where idols exist, is not called

'Garbh-grih' (sanctum sanctorum). The place of descension

of a particular God, is called the 'Garbh-grih' (sanctum

sanctorum).” (E.T.C)

OPW-5, Ramnath Mishra alias Banarasi Panda

^^fookfnr Hkou dh rhu rjg dh ifjdzek gksrh gS] igyh pkSng

dkslh] nwljh ikap dkslh vkSj rhljh vUrxZgh vFkkZr fookfnr Hkou ds

pkjksa rjQA**¼ist 42½

“Three types of circumambulation are performed at

the disputed structure, the first one being ‘14 kosi’

(circumambulation of 14 kosas), the second one being ‘5

kosi’ (circumambulation of 5 kosas) and the third one

being the inner circumambulation, that is, round the

disputed structure.”(E.T.C.)

^^lu~ 1932 ls 1970 rd eSa cjkcj n'kZu djus fookfnr LFky ij

tk;k djrk FkkA lu~ 1932 ls 1970 rd eSa ;kf=;ksa dks ysdj ogka n'kZu

djkus tkrk Fkk] blfy, ljljh rkSj ij ns[krk Fkk] vkSj eSa muds iwtk

djkus] n'kZu djkus vkSj viuh nf{k.kk esa T;knk /;ku nsrk FkkA^^

¼ist 44½

“From 1932 to 1970, I used to go to have darshan at

the disputed structure. From 1932 to 1970 I used to take

along pilgrims to that place for darshan; hence, I used to

2003

see things cursorily and used to pay more attention to

arranging Pooja and darshan for them and to taking

‘Dakshina’ (gift for religious services)." (E.T.C)

^^fookfnr ifjlj ds vUnj eSa rhu txg n'kZu djrk Fkk] igys

ck;sa okys pcwrjs ij n'kZu djrk Fkk fQj f'k[kj okys xHkZx`g dk ckgj

taxys ls n'kZu djrk Fkk vkSj fQj mRrj dh vksj lhrk jlksbZ ds n'kZu

djus tkrk FkkA ogka lhrk jlksbZ ls dHkh eSa mRrjh QkVd ls fudy

tkrk Fkk] vkSj dHkh okil vkdj iwohZ }kj ls ckgj fudy tkrk Fkk] tc

T;knk HkhM+ gksrh FkhA**¼ist 45½

"Inside the disputed structure I used to have darshan

at three places; I used to have darshan first at the left

Chabutra, then at the domed ‘Garbh-Grih’ (sanctum

sanctorum) through the outer grill and then at Sita Rasoi in

the north. I sometimes came out of Sita Rasoi from the

northern gate and sometimes returned to the eastern gate

to go out through it, particularly when there were sizeable

crowds.” (E.T.C.)

^^geus mu ;tekuksa dks dsoy tUe Hkwfe ds iwtk o n'kZu djk;k

FkkA** ¼ist 78½

“I had helped said ‘Yajmans’ in worship and

darshan of Janmbhumi only.” (E.T.C)

OPW-7, Ram Surat Tiwari

^^eSaus lu~ 1942 ls ysdj 15 fnlEcj 1949 ds chp esa fookfnr

Hkou ds vUnj xHkZx`g esa tkdj dHkh n'kZu ugha fd,A fookfnr Hkou ds

xHkZx`g esa dksbZ ewfrZ;ka ugha FkhaA lh[kpksa dh nhokj ds ckgj ls gh Qwy]

izlkn vkSj nO; p<+k fn;k djrs FksA** ¼ist 10½

“Between 1942 to 15th December, 1949, I never had

darshan by going into the sanctum sanctorum inside the

disputed structure. There were no idols in the sanctum

sanctorum of the disputed structure. I used to offer flowers,

‘Prasad’ and other materials only from outside the grill

2004

wall.” (E.T.C.)

^^v;ks/;k esa tgkWa ij jke tUe Hkwfe eafnj fLFkr gS] mlh dks dqN

eqlyeku yksx rFkkdfFkr ckcjh efLtn dgrs gSaA** ¼ist 22½

“That very place in Ayodhya where Ramjanmbhumi

is situated, is called the so called Babri mosque by some

Muslims.” (E.T.C.)

^^rhu xqEcn okys Hkou esa lh[kps okyh nhokj ds ckgj ls eSaus

dsoy mijksDr LFky dk gh n'kZu fd;k Fkk] vkSj mlh dks iz.kke fd;k

Fkk vkSj ogka fdlh pht dk n'kZu ugha fd;k FkkA** ¼ist 71½

“From outside the grill wall in the three domed

structure, I had ‘darshan’ only of the aforesaid place and

paid obeisance to that very place.”(E.T.C.)

OPW-16, Jagadguru Ramanandacharya Swami Ram

Bhadracharya

^^'kk'or iwT; LFkyksa esa egarks dh vko';drk ugha gksrh gSA ,sls

'kk'or iwT; LFkyksa esa jkes'oje] txUUkkFkiqjh] }kfjdk/kke] cnzh ukjk;.k

Hkh gSa] tgkWa egar ugha gSaA eFkqjk ds Jhd".k tUeHkwfe eafnj ij Hkh dksbZ

egar ugha gSA** ¼ist 56½

“Mahantas are not required at the eternally revered

places. Among such eternally revered places are

'Rameshwaram', 'Jagannath', Dwarikadhaam', and 'Badri

Narayan' as well, where there are no Mahantas. There is

no Mahanta even at Mathura situated Sri Krishna Janam

Bhumi temple.”(E.T.C.)

^^iwtk vpZuk dh ckr lu~ 1528 ls ysdj lu~ 1949 rd

ijEijkvksa ds vk/kkj ij ge lqurs pys vk jgs gSa vkSj ;g ijEijk

yxkrkj lquh gqbZ ckrksa ij vk/kkfjr gSA mijksDr ijEijk eSaus vius

thoudky esa vius iwoZtksa ls lquh vkSj ;g esjs fo'okl dh ckr gS

fd ;g ckr esjs iwoZtksa ls lquh vkSj ;g esjs fo'okl dh ckr gS fd ;g

ckr esjs iwoZtksa dks muds iwoZtksa us crkbZ gksxhA Lo;a dgk fd

^^vfofPNUu tuJqfr** dk gh uke ijEijk gSA** ¼ist 63½

2005

“We have been hearing of 'Pooja- Archana' (worship

and prayer) from 1528 to 1949 on the basis of traditions

and this tradition is based on the things heard consistently.

I have heard of the aforesaid tradition from my forefathers

in my life time and it is my belief that my forefathers may

have been told this thing by their forefathers. (Himself

stated) 'Avichchhhinna Janshruti' (anything being heard

consistently) itself is called tradition.” (E.T.C.)

DW-3/9, Shri Ram Ashrey Yadav

^^rhu xqEcn okys fookfnr Hkou ds chp ds xqEcn ds uhps Hkxoku

jke dk tUe gqvk Fkk] ,slk fgUnw yksx ekurs gSaA fgUnqvksa dh ;g ekU;rk

gS fd jke tUe Hkwfe dk n'kZu djus ls eks{k feyrk gSA** ¼ist 13½

“The Hindus so believe that Lord Rama was born

under the mid dome of the three dome disputed structure. It

is the belief of the Hindus that 'Moksha' (salvation) is

obtained by 'Darshan' (offering of prayer by sight) of

Ramjanmbhumi.” (E.T.C.)

DW-3/14 Swami Haryacharya

^^eSa rhu xqEcn okys Hkou esa n'kZu djus igys tkrk FkkA --------

eSaus n'kZu blhfy, fd;k Fkk D;ksafd esjk ;g fo'okl gS fd ogkWa n'kZu

ek= ls eks{k dh izkfIr gksrh gSA** ¼ist 25½

“Earlier I use to go for darshan to the three domed

building. ....... I had the said sight because I believe that

one can attain liberation by merely having sight of the said

place.” (E.T.C.)

^^v;ks/;k esa dsoy tUeHkwfe ij xHkZxg gSA blds vfrfjDr

v;ks/;k ds vU; fdlh efUnj esa xHkZxg ugha gSA** ¼ist 107½

“In Ayodhya, the ‘Garbh-grih’ (sanctum santoram)

exists only at the Janmbhumi. Apart from this, Garbh-grih

is not found in any other temple at Ayodhya.” (E.T.C.)

1916. As long back as in 18th century even Tieffenthaler in

2006

his work "Description : Historique Et Geographique :

Del'Inde" (supra), Exhibit 133 (Suit-5) (Register 21, pages

273-289) has recognised the belief of Hindus with respect to the

place on which they continue to worship despite its being razed

as is evident from the following:

"The Hindus call it Bedi i.e. 'the cradle. The reason for this

is that once upon a time, here was a house where Beschan

was born in the form of Ram. . . . . Subsequently,

Aurengzebe or Babor, . . . got this place razed in order to

deny the noble people, the opportunity of practising their

superstitions. However, there still exists some superstitious

cult in some place or other. For example, in the place

where the native house of Ram existed, they go around 3

times and prostrate on the floor. . . . ."

1917. He also recognised the celebration of the birthplace of

Rama on 24th of the month of Chaitra.

1918. In view of the above, we find force in the submissions

of the learned counsels that the plaintiffs 1 and 2 are juridical

person and considering the fact that they are being visited as a

matter of right by Hindus for Darshan and worship believing the

Place as birthplace of Lord Rama, and the idols being the image

of Supreme Being having divine powers which may cherish

their wishes, provides happiness and salvation. This faith and

belief cannot be negatived on the challenge made by those who

have no such belief or faith. How it was created, who created,

what procedure of Shastrik law was followed are not the

questions which need be gone at their instance. We find that

such faith and belief is writ large by a long standing practice of

Hindus of visiting the place for Darshan and worship.

1919. Now the question is what should be the procedure

2007

where an idol is to be sued or sue. The suit in the name of the

idol can be filed by Shebait. Similarly, idol can be made a

defendant through Shebait. In certain circumstances, however, a

suit can be allowed to be filed or defended through next friend.

1920. The term 'next friend' has been used in Order 32 Rule 1

CPC. This brings into picture Order 32 Rule 1 CPC which reads

as under:

"1. Minor to sue by next friend.- Every suit by a minor

shall be instituted in his name by a person who in such suit

shall be called the next friend of the minor.

Explanation.- In this Order, "minor" means a person

who has not attained his majority within the meaning of

section 3 of the Indian Majority Act, 1875 (9 of 1875),

where the suit relates to any of the matters mentioned in

clauses (a) and (b) of section 2 of that Act or to any other

matter."

1921. Meaning of the expression "a next friend" in Order 32

Rule 1 CPC came to be considered in Amar Chand Vs. Nem

Chand AIR (29) 1942 All.150 where an Hon'ble Single Judge

(Hon'ble Braund J.) observed :

"The expression "a next friend" originally denoted

the person through whom an infant acts without any

necessary reference to litigation but in modern times it has

come to assume a technical meaning of the person by

whom a minor or an infant, as the case may be, is

represented as a plaintiff in litigation. The real object of

having a next friend is that there may be somebody to

whom the defendant or the opposite party may be able to

look for costs. The next friend himself does not actually

become a party to the litigation. It is the minor who is the

2008

party and the next friend is a person- so to speak in the

background- who can act on the minor's behalf and to

whom the opposite party can look for costs.

1922. The Court also considered the difference between

"guardian" and "a next friend" and said:

"As every one knows, a minor who is a defendant to a suit

is represented by a guardian ad litem. There is this

difference between a guardian ad litem and a next friend

that, whereas a guardian ad litem is constituted by an

order of the Court, a next friend automatically constitutes

himself by taking steps in the suit."

1923. About the procedure of filing a suit under Order 32

Rule 1 C.P.C. the Court said:

"Now, O. 32, R. 1 provides for the manner in which a

suit is to be instituted by a minor. It says that every suit by

a minor shall be instituted in his name by a person who in

that suit shall be called his next friend. From that it is quite

clear that a person who does, in fact, institute a suit in the

name of a minor becomes his next friend and, according to

the Code, that would apparently happen at the instant a

plaint is presented on a minor's behalf."

1924. In Annapurna Devi Vs. Shiva Sundari Dasi, AIR

1945 Cal 376 a different view was taken holding that the

appointment of next friend by the Court was not necessary.

1925. For the purpose of procedure, recourse was taken to

Order 32 CPC but not accepted by this Court in Doongarsee

Shyamji vs. Tribhuvan Das, AIR 1947 All 375 observing where

the Shebait of a temple has done something which is obviously

adverse to the interest of the institution, the Court may allow a

disinterested third party to file a suit, but such a suit must be

2009

filed in the interest of the foundation or the deity, as the case

may be. This proposition was expanded and enlarged by a

Division Bench of this Court in Bihari Lal Vs. Thakur Radha

Ballabh Ji and another AIR 1961 Allahabad 73 holding that

the person who has beneficial interest in the temple property can

take steps to see that the temple property is preserved to the idol

and may file a suit for that purpose as the next friend of the

deity, bringing the suit in the name of the deity himself.

1926. This Court in Dongarsee Syamji Joshi (supra) held :

"The analogy of a deity being treated as a minor is

a very imperfect analogy and we cannot carry it far

enough to make O. 32, Civil P.C. applicable. In cases

where the sebaits of a temple have done something which is

obviously adverse to the interest of the institution it may be

that the Courts would allow a disinterested third party to

file a suit, but such suits must be filed in the interest of the

foundation or the deity, as the case may be. the cases relied

on by learned counsel where a sebait transferred property

belonging to the deity and a stranger was allowed to file a

suit as next friend can be distinguished on that ground."

(para 8)

"The result of accepting the argument of learned

counsel would be that any person can constitute himself as

the next friend of a deity and file a suit in the name of the

deity for possession of the property by the dispossession of

a de facto sebait who may be managing the property and

looking after the deity to the satisfaction of everybody and

get hold of the property in the name of the idol till such

time as he is dispossessed again by somebody else. We are

not prepared to hold that such is the law that any third

2010

person can constitute himself as next friend and file a suit

and claim an absolute right to possession of the property

simply because he has filed the suit in the name of the

deity." (para 12)

"An idol, though it is a juristic person, is in charge of

its sebait who, for all practical purposes, represents it. But

there maybe cases where the right of the sebait and the

right of the idol are at conflict and in such a case it may be

that the idol may bring a suit for the vindication of its

rights through a disinterested third party as its next friend.

We do not think we can accept the contention of learned

counsel for the respondent that an idol has no right of suit

at all, though we agree with him that a suit in the name of

the idol can be filed only in the interest of the idol and not

with the object of getting hold of its property by the person

purporting to act as next friend." (para 13)

"There is really no such thing as an idol which is the

private property of an individual or a family or which

belongs to the public. According to Hindu philosophy, an

idol, when it is installed in a temple is the physical

personification of the deity and after consecration the stone

image gets its soul breathed into it. Before an idol can be

installed in a temple, the temple must be dedicated to it and

it becomes its private property. The books of ritual contain

a direction that before removing the image into the temple

the building itself should be formally given away to God for

whom it is intended. The sankalpa, or the formulae of

resolve, makes the deity himself the recipient of the gift

which, as in the case of other gifts has to be made by the

donor taking in his hands water sesamum, the sacred kush

2011

grass and the like. It is this ceremony which divests the

proprietorship of the temple from those who had built it

and vests it in the image which by the process of

vivification has acquired existence as a juridical

personage. A temple building, therefore, under the strict

Hindu law is the property of God and the idol and cannot

be the private property of an individual or a family or a

section the public. The property dedicated to an idol in an

ideal sense vests in the deity, though no Hindu professes to

give the property to God. He only dedicates it to the

worship of God and under the strict Hindu law the King,

who is the servant and the protector of the deity, is the

custodian of the property.” (para 15)

1927. In Sri Nitai Gour Radheshyam Vs. Harekrishna

Adhikari and others AIR 1957 Cal. 77 it was held that non-

filing of application seeking permission to prosecute a suit on

behalf of an idol as Shebait is only an irregularity and such

application if filed later on and allowed by the trial court, the

suit cannot be held to be filed wrongly or not maintainable for

this reason alone.

1928. When a suit can be filed by an idol through a next

friend was considered by a Single Judge in Angoubi Kabuini

and another Vs. Imjao Lairema and others AIR 1959

Manipur 42 wherein it was held:

"Similarly, there is no force in the contention that

such a next friend must be appointed as the next friend by

the Court before he can institute a suit on behalf of the

idol. No provision of law was shown in support of it, rather

the provisions in this respect in the Civil Procedure Code

do not make such a course necessary. It is a different

2012

matter that the defendants can question that suitability of

the next friend after the suit is instituted and then the Court

will have to decide that point, but that is no authority for

the proposition that a next friend must be appointed by the

Court before the suit can be instituted by him. This point

was dealt with in Sri Annapurna Debi v. Shiva Sundari,

AIR 1945 Cal 376 at some length and I am in respectful

agreement with the view taken by the learned Judge in that

case. The case reported in Kalimata Debi v. Narendra

Nath, 99 Ind Cas 917: (AIR 1927 Cal 244) which was

relied upon on the side of the petitioners also does not

support their contention. What was stated in that case was

that the Shebait alone can maintain a suit on behalf of an

idol except perhaps in a case where the Shebait has refused

to institute a suit. The observations in Sri Sri Sridhar Jew

v. Manindra K. Mitter, AIR 1941 Cal 272 were also to the

same effect, namely, that when the interests of the Shebait

are adverse to that of the idol then the idol should be

represented through a disinterested next friend. It will be

thus clear that in a case like the present one it is

permissible for a person who is not the Shebait to bring

such a suit." (Para 4)

1929. It was contended in Bhagauti Prasad Khetan Vs.

Laxminathji Maharaj etc. AIR 1985 All. 228 that no suit

through next friend is maintainable unless an application is filed

seeking leave of the Court to sue as a next friend of the idol. The

Court found that no such procedure is prescribed in Order 32. It

also concurred with a similar view that no such application is

necessary, expressed in Ram Ratan Lal Vs. Kashi Nath

Tewari, AIR 1966 Patna 235 and Angoubi Kabuini vs. Imjao

2013

Lairema (supra). It is true that the two decisions of the Calcutta

High Court in Smt. Sushma Roy Vs. Atul Krishna Roy AIR

1955 Cal 624 and Iswar Radha Kanta Jew Thakur V.

Gopinath Das (supra) in which it was held that if anybody else

other than Shebait has filed suit on behalf of of the idol, he must

be appointed as next friend by the Court on filing of such an

application by him, have been dissented by this Court and it

pointed out contradictory authorities of the Calcutta High Court

in Annapurna Devi (supra).

1930. Dealing with the right of deity to file suit, the Division

Bench of this Court in Bhagauti Prasad Khetan (supra) in para

18 and 19 of the judgment said :

“18. The third point argued by the learned counsel for the

appellants in connection with the maintainability of the suit

is that in the present case Atma Ram did not apply for leave

of the Court to sue as a next friend of the idol and as such

the suit filed by him was not maintainable. In support of

this argument he placed reliance upon Smt. Sushma Roy v.

Atul Krishna Roy, AIR 1955 Cal 624 and Iswar Radha

Kanta Jew Thakur v. Gopinath Das, AIR 1960 Cal 741. It

was held in these cases that anybody other than Shebait

suing on behalf of the idol must be appointed as next friend

by the Court on application by him to that effect. After

having carefully gone through these cases we find

ourselves unable to agree with these observations. A

glance on the judgment reported in AIR 1955 Cal 624,

shows that the decisions of Calcutta High Court are not

uniform on the appointment of the next friend by the Court.

It has been held in Annapurna Devi v. Shiva Sundari Dasi,

AIR 1945 Cal 376 that appointment of the next friend by

2014

the Court is not necessary. Moreover in AIR 1960 Cal 741

it was observed at page 748 that :

“A worshipper or a member of the family has no

doubt his own right to institute a suit to protect his

right to worship and for that purpose to protect the

debutter property. That is, however, a suit by the

member of the family or worshipper in his personal

capacity and not a suit by the deity. The deity has

also a right of its own to have a suit instituted by a

next friend ….Anybody can act as such next friend,

but the law requires that anybody other than Shebait

instituting the suit in the name of deity must be

appointed as such by an order of the Court.”

19. It indicates that no appointment is necessary, if the suit

is filed by a worshipper. Here Atma Ram has joined the suit

as worshipper also. Thus the maintainability of the suit

remains unaffected. Apart from this, in Ram Ratan Lal v.

Kashi Nath Tewari, AIR 1966 Pat 235 and Angoubi

Kabuini v. Imjao Lairema, AIR 1959 Manipur 42 it was

held that such an appointment is not necessary. The

Supreme Court has clearly held in Bishwanath vs. Sri

Thakur Radha Ballabhji, AIR 1967 SC 1044 that the

worshipper has an ad hoc power of representation of the

deity when the Shebait acts adversely. It follows from this

the worshipper having right to represent the deity can

represent the deity without any specific order from the

Court about his appointment. There is no definite

procedure laid down in the Civil P.C. relating to suits on

behalf of idol. The provisions of order 32 C.P.C. which

relate to minor do not specifically provide for the

2015

appointment of the next friend. It may also be added in this

connection that the defendants, appellants did not raise any

objection before the trial Court that Atma Ram should first

make an application for his appointment as next friend of

the deity and then the suit can proceed. Atma Ram clearly

alleged in para 1 of the plaint that he is representing the

deity as its next friend. The manner in which he was

allowed to continue the suit indicates that he should be

deemed to have been accepted as next friend of the deity.

Thus the suit cannot be held not maintainable because

Atma Ram did not make an application and was not

appointed as next friend of the idol plaintiff 1 in the trial

Court.”

1931. As a proposition of law we are inclined to express our

respectful agreement with the above view taken in Bhagauti

Prasad Khetan (supra) and learned counsel for the parties

could not place before us any binding authority or otherwise

material to pursue us to take a different view.

1932. In Sri Thakur Kirshna Chandramajju vs.

Kanhayalal and others AIR 1961 Allahabad 206 another

Division Bench followed the view of this Court in Bihari Lal

Vs. Radha Ballabh Ji (supra) by observing in paragraph 39 of

the judgment, where the acts of the alleged Shebait are being

impugned, then the idol may sue through a next friend who has

beneficial interest in the property.

1933. In Sri Sri Gopal Jew Vs. Baldeo Narain Singh and

others, 51 CWN 383 the question of maintainability of suit of a

deity through a person who was not a Shebait came to be

considered in detail. Initially, the suit was filed in the name of

deity alone through one Sri Rajendra as its next friend.

2016

Subsequently, Rajendra was also impleaded as second plaintiff.

The Court referred to general rule enunciated by James, L.J. in

Sharpe Vs. San Paulo Railway Co., L.R. 8 Ch. App. 597 at

pp.609 and 610 (1873) observing :

".................... a person interested in an estate or trust fund

could not sue a debtor to that trust fund, merely on the

allegation that the trustee would not sue; but that if there

was any difficulty of that kind, if the trustee would not take

the proper steps to enforce the claim, the remedy of the

cestui que trust was to file his bill against the trustee for

the execution of the trust or for the realisation of the trust

fund and then to obtain the proper order for using the

trustee's name, or for obtaining a Receiver to use the

trustee's name, who would, on behalf of the whole estate,

institute the proper action, or the proper suit in this Court."

1934. Hon'ble Das J. in Gopal Jew (Supra) however,

proceeded to hold at page 390 of the judgment as under:

"In special circumstances, however, e.g., where the

trustee is unwilling or refuses to sue or has precluded

himself, by any act, omission or conduct, from suing, a

cestui que trust may himself institute the action adding as

Defendants every trustee and every other cestui que trust

as the cases cited in the notes in Halsbury's Laws of

England, 2nd Edn., Vol.33, paragraph 505 at pages 288

and 289 will show."

"............Can it be expected, in the circumstances, that the

trustees, who perpetrated the fraud on the deity, will

themselves come forward to take proceedings to get the

consent decree set aside on the ground of their own fraud ?

It may be that in law there is nothing to prevent the

2017

defaulting trustees from filing a suit as Plaintiffs, but from

a practical point of view will not their presence in the

category of Plaintiffs seriously jeopardise the chances of

success of such a suit? Will it not be said that the solicitude

now shown by them for the beneficiaries including a deity

whose interest they had not thought of for all these years is

a mere pretence. One of the major beneficiaries is a deity

of whom after the death of the daughter and grand

daughter of Sreegopal the trustees and their brothers

and/or their sons will be the shebaits. Will not the trustees,

if they themselves bring a suit lay themselves open to a

double charge of fraud, fraud on the deity in the first

instance and fraud on the purchasers now? Is there no risk

of there being personally made liable for costs? The

trustees may be penitent, as both Bonwari and Madho say

or pretend they are, or they may be unrepentant sinners as

the Defendants maintain they are; but will not the

considerations mentioned above weigh with them equally

in either case? However genuinely repentant they may be,

they may yet be not willing to face the Court as Plaintiffs

for fear of being made to pay the costs or of prejudicing the

deity. They may be willing or even anxious to render

assistance to the beneficiaries, yet they may be reluctant to

figure as Plaintiffs. On the other hand, if they are

unrepentant and their sole object is to benefit themselves

they will out of policy keep themselves behind the scenes.

In either case they cannot for a moment be expected to take

proceedings in their own name. Is the deity who is one of

the beneficiaries to suffer? The law recognises the deity as

a juridical entity capable of having legal rights. If a fraud

2018

has been perpetrated on the deity and its right, such as is

alleged in this suit, the deity is entitled to be reinstated in

its original rights. Such reinstatement may indirectly

benefit the very persons who perpetrated the fraud on the

deity. It may be – indeed, I am strongly inclined to think it

is – that the defaulting trustees are behind this litigation

and have set up a son of one of them to file this suit for

their own ends but their evil motive or rascality cannot

effect our extinguish the deity's rights. As long as the deity

is recognised as a legal entity capable of holding

properties, its right must necessarily be recognised on its

own merits. The Court cannot ignore the deity's rights or

deny protection to the deity merely because of the

misconduct of its unmeritorious trustees or shebaits or of

the possibility of those very unmeritorious persons

indirectly reaping the benefit of such protection. The fact

that the deity may be again defrauded can be no ground for

declining to remedy the fraud that has already been

perpetrated on its rights. In my judgement, in the

exceptional circumstances of the present case and in view

of the allegations in the plaint it must be held that the

trustees are unwilling or have refused or at any rate by

their act or conduct rendered themselves incompetent to

maintain a suit for setting aside the decree in 1926 and the

beneficiaries themselves must be allowed to take legal

proceedings.

1935. The Court held in Gopal Jew (Supra) that the suit is

maintainable but it chose to rely on Order 32 Rule 4(1) of the

Code of Civil Procedure for the said purpose.

1936. Considering Order XXXII Rule 1 C.P.C., a Single

2019

Judge of Andhra Pradesh High Court in Duvvuri Papi Reddi

and others Vs. Duvvuri Rami Reddi AIR 1969 AP 362, held in

para 14:

“It must however, be remembered that Order XXXII deals

only with procedure. It does not confer on minors or

persons of unsound mind any right of any sort. Under Rule

1 of Order XXXII, every suit by a minor shall be instituted

in his name by a person who in such suit shall be called the

next friend of the minor. Where the suit is instituted without

the next friend, according to Rule 2, the defendant is

entitled to apply to have the plaint taken off the file, with

costs to be paid by the pleader or other persons by whom it

was presented. After hearing the objections, the Court is

empowered to pass such order as it thinks fit under Rule 2.

Order XXXII, Rule 1 states that along with such a suit an

application by the next friend should be filed for the

purpose of appointing him as the next friend it is

necessarily implied”

1937. Some of the judgments, which we have already

referred, show that the same were given by holding that a Deity

does not suffer any disability as it is not minor, in order to argue

that Order XXXII, Rule 1 has no application, drawing a parallel

with Section 6 of the Limitation Act. An attempt was made that

the Deity having been held not a minor for the purpose of

Section 6 of the Limitation Act and therefore for the purpose of

Order XXXII, Rule 1 C.P.C. also it cannot be treated to be a

minor and that provision will have no application.

1938. Relying on Privy Council's decision in Damodar Das

Vs. Adhikari Lakhan Das (supra) and a Division Bench

decision of Patna High Court in Naurangi Lal Ram Charan

2020

Das AIR 1930 Patna 455 an attempt was made to argue that a

Hindu idol/deity cannot be included within the term "minor". In

the context of Section 6 of the Limitation Act this view was

taken by the Patna High Court in Naurangi Lal (supra), hence

it was argued that on the same principle Order 32 Rule 1 has no

application in this case and an idol cannot be allowed to be sued

through next friend treating it to be a minor but with great

respect we find that the issue is already concluded by the

decision of the Apex Court in Bishwanath vs. Sri Thakur

Radha Ballabhji (supra). We also find that the Patna High

Court referred to an earlier decision of this Court in Chitar Mal

Vs. Panchu Lal AIR 1926 All.392 and the Oudh Chief Court in

Prakash Das Vs. Janki Ballabha Saran AIR 1926 Oudh 444

holding that property can be acquired as against an idol by

adverse possession which will run from the date of the

alienation inasmuch as an idol does not suffer from any

disability under the Limitation Act and in reference thereof it

was held that the idol cannot be treated to be a 'minor' so as to

suffer a disability under Section 6 of the Limitation Act.

1939. To the same effect is a Division Bench decision of

Orissa High Court in Radhakrishna Das Vs. Radha Ramana

Swami & others AIR (36) 1949 Orissa 1. In that case also there

was a family idol of Thakur Radharamna Swami. It belonged to

the family of Ranganath Deb Goswami whose father executed a

deed on 21st November 1909, transferring his Shebait right as

inam lands endowed for the service of the deity and the idol

itself to Mahant of the Gangamatha Math at Puri and put him in

possession of the plaintiff deity. The Government of Madras

resumed the inam grant on 4th November 1921 on the ground it

has been alienated. Hence, the purpose of grant has failed.

2021

Ranganath Deb Goswami requested the Government to hand

over the net assessment of the village so that Seva Pooja of the

deity may be continued. The Mahant of Gangamatha Math at

Puri raised an objection. The Government left the parties to

establish their rights in a Civil Court and collection from village

were kept in the treasury subject to final adjudication of the title.

Ranganath Deb Goswami filed a suit against the Mahant of

Gangamatha Math at Puri praying for a declaration that the

plaintiff idol has not been removed from the Goswami Math to

Gangamatha Math, as falsely stated in the deed executed on 21st

November 1909. The suit was decided against Goswami Math

as a result whereof the inam village was re-granted to

Gantamatha Math. Thereafter, a suit was filed by zamindars of

Takkali as next friend of the idol seeking a declaration that the

retention of idol at Gangamatha Math by its Mahant is wrongful

and a continuing wrong, the idol be restored to its original place,

i.e., Goswami Math. The next frient of the idol claimed to be the

successor of the original founder of the endowment, i.e.,

Goswami Math and as such interested in the location of the idol

at proper place and claimed that it is the will of the idol to be

returned at the original place and to be worshipped thereat. The

cause of action was claimed to be a continuing one. The Trial

Court formulated several issues and with respect to the validity

of the transfer from Goswami Math to Gangamatha Math

observed that the said transfer is not illegal and cannot be

questioned by the next friend of the idol. He held the retention

not illegal and the suit was held barred by limitation. The

judgment was reversed in appeal. The High Court allowed the

appeal and restored the judgment of the Trial Court in the

background of the above facts. High Court found that there was

2022

no difference in the customary mode of worship in Goswami

Math and Gangamatha Math. The plea of different of customary

mode of worship was found a pure myth and unsubstantiated.

Secondly, it held that the lower Appellate Court erred in

observing that the Mahant of Goswami Math being a married

person was capable of conducting worship though the Mahant of

Gangamatha Math, Sanyasi, could not have been capable

thereof. The Court observed that this finding is erroneous and

the lower Appellate Court has proceeded on some unfortunate

confusion between an "ascetic" and a 'Sanyasi. The aforesaid

words have been explained by the Court as under:

"There has been an unfortunate confusion in the

lower Courts between an "ascetic" and a 'Sanyasi.' The

only difference that I can find between defendants 1 and 2

is that the former is a perpetual Brahmachari or Virakta of

the Vaishnab sect while the latter is a Gruhi or married

man. Both worship deities, both perform the annual

ceremonies of their Gurus or ancestors, and also perform

other Vaidio Karmas. Sanyasi should have no Gods or

temple. Their only vocation is the contemplation of the

absolute truth and not the worship of any God. A

Brahmachari or student, according to Golap Chandra

Sarkar is of two descriptions, namely, Upakarvana or

ordinary student and Naishtika or life long student. The

former became a house-holder in due course, while the

latter was a student for life, devoted to the study of science

and theology, felt no inclination for marriage, did not like

to become a house-holder, and chose to life, as a perpetual

student, the austere life of celibacy. There are persons

belonging to certain religious sects of modern origin such

2023

as the Vaishnabs that do in some respect resemble lifelong

students and itinerant ascetics. They are connected with the

well-known Maths or Mahants.... Most of the Vaishnabite

Maths of Bengal, Bihar and Orissa were founded by

Bengalee Brahmins and Kayasthas who were the disciples

and followers of Chaitanya and they were not merely

founded by celibates but by house-holders. The three

Peabhus who are the chief spiritual preceptors or masters

of this order are Obaitanya, who is believed to be the

incarnation of Lord Krishna, Adwaitanand and Nityanand.

Adwaitanand's descendants residing at Santipur are now

chief spiritual preceptors along with the male and female

descendants of Nityananda. Besides these three Prabhus,

the Vaishnabs of this order acknowledge six Goaains as

their original and chief teachers and founders, in some

instances of the families now existing, to whom as well as

to the Gokulashta Gosains, hereditary veneration is due.

These six are Rupa, Sanatan, Jeeva, Raghunath Bhat,

Baghunath Das, and Gopal Bhat. They appear to have

settled at Brundaban and Mathura. The post of spiritual

Guide is not confined only to the Brahmins: some of the

well-known Gosains' belong to the Vaidya caste.

Chaitanya, the founder of these cults, nominated

Adwaitacharya or Adwaitanand and Nityanand to preside

over the Bengal Vaishnabs, and Bupa and Sanatan over

those of Mathura: See Wilson's works, vol. I. It is said that

defendant 1 claims descent through Gadadhar Prabhu and

defendant 2 through Nityanand Prabhu who were both

followers of Lord Chaitanya. A reference to Chaityanya

Charitamruta and Baishnab Abidhana shows that

2024

Gadadhar who was also known as Pandit Prabhu

Gadadhar Pandit and Godai, was the disoiple of Pandarik

Bidyanidhi who was himself a disciple of Advaitanand.

Gadadhar came to Orissa along with Sri Chaitanya and

lived the life of a perpetual Brahmachari till his death in

1533. Gangamudri was an Oriya lady and was a disciple of

Gadadhar's branch. Gadadhar was a great scholar and

wrote commentaries on the Gita. Besides he was a life-long

associate of Lord Chaitanya and is regarded by the

Vaishnabs as one of the Pancha Tatva. The appellant's

Math is obviously named after Gangamudri, who was a

Vaishnab herself and is known as the Gangamatha Math."

1940. Coming to the question of limitation, the Court in

Radhakrishna Das Vs. Radha Ramana Swami (supra) has

dealt with this issue in paras 13 and 19 at length. Certain

propositions which it has accepted as well settled are:

(a) As a general rule according to Hindu law, property

given for the maintenance of religious worship is

inalienable. (Reliance is placed on Mac Naughton's

"Precedents of Hindu Law" Vol. II, p. 305; Sri Sri

Ishwar Lakshi Durga Vs. Surendra Nath Sarhar 45

C.W.N. 665 and Surendra Narayan Sarbadhikari Vs.

Bholanath Roy Choudhuri AIR (30) 1943 Cal. 613)

(b) The manager of an endowment has the same powers as

a guardian of an infant to incur loans for necessary

purposes and such loans will bind the idol's estate.

(c)Where the temple is a public temple, the dedication

may be such that the family itself could not put an end to

it, but in the case of a family idol the consensus of the

whole family might give the estate another direction.

2025

(Reliance is placed on Kunwar Darganath Vs.

Ramchunder 4 I.A. 52 (P.C.) and Tulsidas Vs.

Sidahinath (9) I.C. 650)

(d) It is only in an ideal sense that property can be said to

belong to an idol, and the possession and management of

it must in the nature of things be entrusted to some person

as the Shebait or Manager. (Reliance is placed on

Prosunno Kumari Debya v. Gulabahand (supra) and

Kunwar Darganath Vs. Ramchunder (supra).

(e) Person so entrusted must of necessity be empowered to

do whatever may be required for the service of the idol

and for the benefit and preservation of its properties, at

least to as great a degree as the manager of an infant heir.

(f) A Shebait can borrow for legal necessity and for

necessaries of the deity and bind the estate of the deity.

(g) Right to be worshipped at a particular place or by a

person may be regarded as intangible property (Reliance is

placed on Mahamaya Devi Vs. Hari Das Haldar AIR (2)

1915 Cal. 161)

1941. Having said so, the Court observed that in the eyes of

law, idols are property and placed reliance on Subbaraya

Gurukkal Vs. Chellappa Mudali 4 Mad. 315. It referred to a

Calcutta High Court decision in Bali Panda Vs. Jadumani 7

I.C. 475, wherein it was held that being a juridical person, the

idol is not movable property though it is property for which a

suit is governed by Article 120 Limitation Act. Having referred

to the above two decisions, the Orissa High Court proceeded not

to record any final opinion as to whether the idol can be

regarded as movable or immovable property as is evident from

para 13 of the judgment. However for our purpose, we find that

2026

this question needs some consideration. If an idol can be held to

be a property, it well be a judicial proposition to treat it as a

juridical person capable of holding the property as a right to sue

or be sued or other consequences in law which are available to a

legal person. It is inconceivable that a legal person, i.e., idol

itself is a property and can also hold property. What appears to

us is that the man made idols made of precious metals may have

their value in the economic sense, not in the form of image but

on account of the preciousness of the metal of which it consists.

In modern days, the Hindu religious idols of ancient period have

also become precious and antique market internationally though

it is a crime under some statutes of this Country. Therefore,

beyond India, antique Hindu idols by the persons of other

religions may have economic worth for different reasons but for

the worshippers it is a matter of faith and belief and not the

economic worth. Normally, a Hindu worshipper cannot think of

selling an idol being worshipped by all Hindus treating it to be a

property consisting of gold, silver or any other metal since it is

against the civilized motion of the Hindu society who believe

and have faith in the religion. But if the idol has lost its efficacy

as deity for one or the other reason and the precious metal of

which it was made for one or the other reason has converted into

form of that metal itself, obviously it will be a property of the

value that metal would be. In short, what we intend to say is that

a consecrated man made idol, irrespective of preciousness of the

metal of which it is made, is not treated to be property in any

manner by the worshippers of that deity and, therefore, it cannot

be said to be a property as a matter of legal proposition. But the

right to worship the idol and possession of the deity for the

purpose of its management, sewa, pooja etc. constitute the rights

2027

of Shebait, which is an office, and can be said to be an

intangible property right. The High Court further said that

Thakur Ji can be the subject of possession and adverse

possession. This wide proposition again is difficult to accept. A

person, whether legal or natural, by itself can be subject of

possession or adverse possession is a bit difficult to understand.

The property of an idol or deity may be subject of possession

and adverse possession in law if it is so permissible but the deity

itself, in our view, cannot be said to be subject of possession and

adverse possession in the manner it is being said and here also

what we have observed with respect to the concept of idol as

property can be read here also.

1942. Then comes the next proposition. The Orissa High

Court held, "An idol is no doubt in the position of an infant as it

can act only through a sebayat or a manager." Having said so, it

proceeded further to observe that there is no authority to show

that this infant can be treated to be a perpetual infant so that

transaction by or against him will not be governed by Limitatin

Act. It further proceed to hold that " The doctrine that an idol is

a perpetual minor is an extravagant doctrine as it is open to the

sebayat, or any person interested in an endowment, to bring a

suit to recover the idol's property for devottar purposes."

(Reliance for the said proposition has been placed on Damodar

Das Vs. Lakhan Das (supra) and Surendra Krishna Roy Vs.

Bhubaneswari Thakurani AIR (2) 1933 Cal. 295). The Court

further observed:

(i) An idol can also acquire rights by adverse possession

just as much as there can be adverse possession against the

idol. [Anand Chandra Vs. Brojalal (supra)]

(ii) A suit by the idol or the manager of the idol on

2028

behalf of the idol for recovery of possession must be

brought within 12 years from the date of alienation.

(iii) An idol is as much subject to the law of limitation

as a natural person and cannot claim exemption on the

ground that he is a perpetual infant, nor is a Hindu deity to

be regarded as a minor for all purposes. (reliance is placed

on Anantakrishna v. Prayag Das I.L.R (1937) 1 Cal. 84

(iv) A idol cannot claim exemption from the law of

limitation. (reliance is placed on Surendrakrishna Roy

Vs. Ishree Sree Bhubneswari Thakurani (supra) as

confirmed by Privy Council Bhubaneswari Thakurani

Vs. Brojanath Dey AIR (24) 1937 PC 185)

1943. Reliance is also placed on a Division Bench decision

on Orissa High Court in Jagannath vs. Tirthnanda Das AIR

1952 Orissa 312 where following Talluri Venkata Seshayya

and others Vs. Thadikonda Kotiswara Rao (supra) the Court

expressed its opinion against treating idol as perpetual minor

and said in para 11:

"......But it is well-settled that an idol cannot be

regarded as a perpetual minor and the special protection

given to a minor does not apply to an idol. The protection

of a minor against the negligent actings of a guardian is a

special one and statutory provision has been made for

safeguarding a minor's interest."

1944. In Tarit Bhusan Rai and another Vs. Sri Sri Iswar

Sridhar Salagram Shila Thakur (supra) the Court said:

“In view of the religious customs of the Hindus

which have been recognised by Courts of law a Hindu idol

like a juristic person under the English system has been

vested with the capacity of holding properties and with the

2029

powers of suing or being sued (Ibid). A juristic person

under the English system has no body or soul. It has no

rights except those which are attributed to it on behalf of

some human beings. The lump of metal, stone, wood or

clay forming the image of a Hindu idol is not a mere

moveable chattel. It is conceived by the Hindus as a living

being having its own interests apart from the interests of its

worshippers. It is a juristic person of a peculiar type.

The points of similarity between a minor and a Hindu

idol are :(1) Both have the capacity of owning property. (2)

Both are incapable of managing their properties and

protecting their own interests. (3) The properties of both

are managed and protected by another human being. The

manager of a minor is his legal guardian and the manager

of an idol is its shebait. (4) The powers of their managers

are similar. (5) Both have got the right to sue. (6) The bar

of S. 11 and Order 9, R. 9, Civil P.C., applies to both of

them.

The points of difference between the two are: (1) A

Hindu idol is a juristic or artificial person but a minor is a

natural person. (2) A Hindu idol exists for its own interest

as well as for the interests of its worshippers but a minor

does not exist for the interests of anybody else. (3) The

Contract Act (Substantive law) has taken away the legal

capacity of a minor to contract but the legal capacity of a

Hindu idol to contract has not been affected by this Act or

by any other statute. (4) The Limitation Act (an adjective

law) has exempted a minor from the operation of a bar of

limitation but this protection has not been extended to a

Hindu idol.

2030

From the above it is clear that there is some analogy

between a minor and a Hindu idol but the latter is neither a

minor nor a perpetual minor. Although in law an idol has

the power of suing it has no physical capacity to sue. This

absence of physical capacity is perhaps referred to by the

Judicial Committee when they said in 31 I.A. 203 that the

right of suit is not vested in the idol. Who is then entitled

to exercise the idol's power of suing? This is a matter of

substantive law:

Its (idol's) interests are attended to by the person

who has the deity in his charge and who is in law its

manager with all the powers which would in such

circumstances on analogy be given to the manager of the

estate of an infant heir: 52 I.A. 245.

“The manager of the estate of an infant heir”

apparently means the legal guardian of an infant. The

powers of the legal guardian of an infant include the power

to sue on behalf of the infant. The shebait of a Hindu idol is

its manager in law. On the analogy of the power of the

legal guardian of an infant the shebait of a Hindu idol has

the right to sue on behalf of the idol, for the protection of

its interests. In this sense it may be said as was said by the

Judicial Committee in 31 I.A. 203 that the right of suit vests

in the shebait.” (page 103)

“A Hindu idol as has been already stated is a juristic

person having its own interests apart from the interests of

its worshippers. 31 I.A. 203 and 52 I.A. 245 are authorities

for the proposition that its power of suing for protecting its

own interests is to be exercised by it through its de jure or

de facto shebait. The worshippers of the idol are interested

2031

in the idol and as such are interested in the property

dedicated to it for its maintenance. Their right to sue for

the protection of the idol's property is founded upon their

own interest viz., the right of worship apart from and

independent of the idol's right to sue for the protection of

its own interests and properties. They have no right to

exercise the idol's power of suing.” (page 104)

“The introduction of the idol and its recognition as a

juristic person are more a matter for the procedure and the

procedure in India recognises the idol as having a locus

standi in judicio.” (page 119)

1945. All these propositions as laid down, wide as they are,

we find difficult to subscribe. Once it is held that an idol is in

position of an infant, we fail to understand as to how it is infant

or minor for one purpose and not for another. In our sense

whether a minor is entitled to act, not to act or protect it, that

would apply without any distinction to alike minor who is

looked after by his/her guardian, may be natural or otherwise

and manner in which his property can be dealt with by such

guardian all will apply to a deity also. To that extent, deity, once

a minor, will continue to be treated as minor for all purposes and

we find no authority to show as to how and in what

circumstances and why there can be a distinction between the

status of deity as minor and natural person as minor. If by nature

of thing, a deity is such kind of minor which can never attain

majority, this by itself would not deprive it from protections or

otherwise which are available to a natural minor. One can have

no dispute about the proposition that minor's estate can be

encumbrance by a person, who is entitled to manage his affairs,

may be a guardian in case of natural minor and Shebait in case

2032

of idol so long such encumbrance is necessary for the benefit of

the minor or the idol, as the came may be. The proposition that

an idol can claim somebody's property under possession

adversely and his property also can be subject to same

consequences has to be understood in the facts of the things.

Obviously, an idol cannot move on its own. If there comes a

question of unauthorized possession of some other's property by

an idol, this would have to be through some natural person. The

benefit may ultimately go to the idol if such unauthorized

possession completes the statutory period of limitation to be

converted into a title, but that does not mean that it has been

done by the idol on its own inasmuch if a suit for eviction is to

be filed before expiry of period of limitation, that will be against

the idol represented through a Shebait or the natural person who

is responsible for such possession. Similarly, the property of an

idol, if unauthorizedly possessed by a person there can be two

types of cases; where a caretaker, i.e, Shebait or whatever name

it is called is available, but does not take any action allowing the

unauthorized possession by another person to continue for the

period of limitation resulting in extension of rights of the minor

to the property,if inaction on the part of Shebait or caretaker, as

the case may be, is not found to be collusive, fraudulent or

deliberate mismanagement of the property of the minor, one

may raise the plea of limitation but we have serious doubt in

successful representation of such right for the reason that for

claiming adverse possession an open hostile possession to the

knowledge of owner is an integral constituent of the plea of

adverse possession. Such a knowledge to the owner of the

property, i.e., idol cannot be perceived for the reason such a

knowledge to the minor's inaction on his part is not recognised

2033

in law. It is this distinction which has been pointed out by the

Privy Council in the case of Masjid Shahid Ganj v. Shiromani

Gurudwira Parbandhak Committee, Amritsar, 67 Ind. App.

251 at p.264 (P.C.) where the plea of legal person qua a mosque

has been turned down by the Privy Council observing that

unlike a Hindu idol a mosque cannot be held to be a juristic

personality or a legal person in law. The Court held the Mosque

as property and, therefore, capable of adverse possession. The

property of a juristic personality cannot be said to be inalienable

in all circumstances, for example, it can be transferred by

Shebait for managing funds for managing the affairs of the idols

and so on, but not in all circumstances. This distinction has to be

understood in order to appreciate the concept of idol, deity, legal

personality etc. of Hindu law as recognised by British India

Courts before independence. Regarding the juristic personality

of the idol, virtually there was no difference but regarding the

statute of idol as a minor or perpetual minor, there appears to be

some difference among various Courts. The Apex Court in

Bishwanath Vs. Shri Thakur Radhaballabhji (supra) has

made it clear that a Hindu idol enjoy status of a minor. There is

no restriction in such declaration that such concept of minor of

the idol should be understood in a restricted manner and it

would be a minor only for certain purposes and not for other

purposes. In the light of the above discussion, respectfully we

are of the view that the wider observations of the Orissa and

Calcutta High Courts cannot be concurred by us.

1946. The matter thus now stand settled by the Apex Court

in Bishwanath & another Vs. Sri Thakur Radha Ballabhli &

others (supra) holding the Deity a minor, all the judgments

which have taken a different view of the High Courts or Privy

2034

Council cannot be treated to be a good law or a binding

precedent.

1947. This question that a Deity being minor can be

represented by a next friend has been reiterated by the Apex

Court in another case i.e. in Vemareddi Ramaraghava Reddi

Vs. Kondaru Seshu Reddi (supra) at page 440 the Court said:

"The legal position is also well-established that the

worshipper of a Hindu temple is entitled, in certain

circumstances, to bring a suit for declaration that the

alienation of the temple properties by the de jure Shebait is

invalid and not binding upon the temple. If a Shebait has

improperly alienated trust property a suit can be brought

by any person interested for a declaration that such

alienation is not binding upon the deity but no decree for

recovery of possession can be made in such a suit unless

the plaintiff in the suit has the present right to the

possession. Worshippers of temples are in the position of

cestui que trustent (Sic) or beneficiaries in a spiritual

sense.

.........................................

The possession and management of the property with

the right to sue in respect thereof are, in the normal course,

vested in the Shebait, but where, however, the Shebait is

negligent or where the Shebait himself is the guilty party

against whom the deity needs relief it is open to the

worshippers or other persons interested in the religious

endowment to file suits for the protection of the trust

properties. It is open, in such a case, to the deity to file a

suit through some person as next friend for recovery of

possession of the property improperly alienated or for

2035

other relief. Such a next friend may be a person who is a

worshipper of the deity or as a prospective Shebait is

legally interested in the endowment."

1948. An attempt was made to bring in Section 92 C.P.C.

where the interest of Deity is not properly observed but we find

that this issue also stand settled by the Apex Court in

Bishwanath & another Vs. Sri Thakur Radha Ballabhli &

others (supra) holding that Section 92 in such a matter has no

application. The Court in para 9, 10, 11 and 12 held as under:

“9. Three legal concepts are well settled : (1) An idol

of a Hindu temple is a juridical person; (2) when there is a

Shebait, ordinarily no person other than the Shebait can

represent the idol; and (3) worshippers of an idol are its

beneficiaries, though only in a spiritual sense. It has also

been held that persons who go in only for the purpose of

devotion have according to Hindu law and religion, a

greater and deeper interest in temples than mere servants

who serve there for some pecuniary advantage see Kalyana

Venkataramana Ayyangar v. Kasturi Ranga Ayyangar, ILR

40 Mad 212 at p. 225: (AIR 1917 Mad 112 at p. 118). In

the present case, the plaintiff is not only a mere worshipper

but is found to have been assisting the 2nd defendant in the

management of the temple.

10. The question is, can such a person represent the

idol when the Shebait acts adversely to its interest and fails

to take action to safeguard its interest. On principle we do

not see any justification for denying such a right to the

worshipper. An idol is in the position of a minor and

when the person representing it leaves it in a lurch, a

person interested in the worship of the idol can certainly be

2036

clothed with an ad hoc power of representation to protect

its interest. It is a pragmatic, yet a legal solution to a

difficult situation. Should it be held that a Shebait, who

transferred the property, can only bring a suit for recovery,

in most of the cases it will be an indirect approval of the

dereliction of the Shebait's duty, for more often than not he

will not admit his default and take steps to recover the

property, apart from other technical pleas that may be

open to the transferee in a suit. Should it be held that a

worshipper can file only a suit for the removal of a Shebait

and for the appointment of another in order to enable him

to take steps to recover the property, such a procedure will

be rather a prolonged and a complicated one and the

interest of the idol may irreparably suffer. That is why

decisions have permitted a worshipper in such

circumstances to represent the idol and to recover the

property for the idol. It has been held in a number of

decisions that worshippers may file a suit praying for

possession of a property on behalf of an endowment; see

Radhabai v. Chimnaji, (1878) ILR 3 Bom 27, Zafaryab Ali

v. Bakhtawar Singh, (1883) ILR 5 All 497

Chidambaranatha Thambirarn v. P. S. Nallasiva Mudaliar,

6 Mad LW 666 : (AIR 1918 Mad 464), Dasondhay v.

Muhammad Abu Nasar, (1911) ILR 33 All 660 at p. 664:

(AIR 1917 Mad 112) (FB), Radha Krishnaji v. Rameshwar

Prasad Singh, AIR 1934 Pat 584, Manmohan Haldar v.

Dibbendu Prosad Roy, AIR 1949 Cal 199.

11. There are two decisions of the Privy Council,

namely, Pramatha Nath Mullick v. Pradyumna Kumar

Mullick, 52 Ind App 245: (AIR 1925 PC 139) and

2037

Kanhaiya Lal v. Hamid Ali, 60 Ind App 263: (AIR 1933 PC

198 (1)), wherein the Board remanded the case to the High

Court in order that the High Court might appoint a

disinterested person to represent the idol. No doubt in both

the cases no question of any deity filing a suit for its

protection arose, but the decisions are authorities for the

position that apart from a Shebait, under certain

circumstances, the idol can be represented by disinterested

persons. B. K. Mukherjea in his book "The Hindu Law of

Religious and Charitable Trust" 2nd Edn., summarizes the

legal position by way of the following propositions, among

others, at p. 249 :

"(1) An idol is a juristic person in whom the title to

the properties of the endowment vests. But it is only

in an ideal sense that the idol is the owner. It has to

act through human agency, and that agent is the

Shebait, who is, in law, the person entitled to take

proceedings on its behalf. The personality of the idol

might, therefore, be said to be merged in that of the

Shebait.

(2) Where, however, the Shebait refuses to act for the

idol, or where the suit is to challenge the act of the

Shebait himself as prejudicial to the interests of the

idol, then there must be some other agency which

must have the right to act for the idol. The law

accordingly recognises a right in persons interested

in the endowment to take proceedings on behalf of

the idol."

This view is justified by reason as well by decisions.

12. Two cases have been cited before us which

2038

took a contrary view. In Kunj Behari Chandra v. Shyam

Chand Jiu, AIR 1938 Pat 384, it was held by Agarwala, J.,

that in the case of a public endowment, a part of the trust

property which had been alienated by the Shebait or lost in

consequence of his action could be recovered only in a suit

instituted by a Shebait. The only remedy which the

members of the public have, where the property had been

altenated by a person who was a Shebait for the time being

was to secure the removal of the Shebait by proceedings

under S. 92 of the Code of Civil Procedure and then to

secure the appointment of another Shebait who would then

have authority to represent the idol in a suit to recover the

idol's properties. So too, a Division Bench of the Orissa

High Court in Artatran Alekhagadi Brahma v. Sudersan

Mohapatra. AIR 1954 Orissa 11, came to the same

conclusion. For the reasons given above, with great

respect, we hold that the said two decisions do not

represent the correct law on the subject.”

1949. We, therefore, answer Issue No. 1 (Suit-5) insofar as it

relates to plaintiff no. 2 (Suit-5) that it is juridical persona and

can sue or be sued through a next friend. However, this is

subject to our further answer to the issues relating to birthplace

of Lord Rama at disputed site in affirmance which we shall

discuss separately.

1950. We could have answered about plaintiff no. 1 (Suit-5)

also at this very stage but we intend first to consider the Issues

No. 12 (Suit-4) and 3 (a) (Suit-5) and to find out their effect, if

any, on the status of plaintiff 1 (Suit-5) and then shall give our

final opinion thereon. The issue whether the idol in question and

the object of worship were placed inside the disputed property

2039

or the building in the night of 22nd/23rd December, 1949 has to

be considered in the light of the concept of the "building" or the

"mosque" to the parties in the suit concerned.

1951. In para 2 of the plaint (Suit-4) the mosque has been

denoted by the letters "A, B, C, D" which covers the entire area

of outer and inner courtyard including the building (excluding

the extreme south portion which is denoted by the word

"Chabutara" on the west-south side and behind Ram Chabutara

on east-south side on the map prepared by Sri Shiv Shankar Lal,

Commissioner on 25.05.1950). No distinction has been made by

the plaintiff (Suit-4) about the disputed building within the inner

courtyard and the area and structure comprising the outer

courtyard.

1952. This pleading has made the issue slightly complicated

for the reason that onus lie initially upon the plaintiffs (Suit-4)

to show that no idols whatsoever existed upto or before

22.12.1949 in this entire area A, B, C, D which they claim to be

the "area of mosque". In fact to the same effect is their pleading

in para 1 of the written statement in Suit-5 where defendant no.

4 (Sunni Board) says that, "As a matter of fact there has never

been any installation of the deity within the premises of disputed

place of worship known as Babari Mosque and the idol in

question was stealthily and surreptitiously kept in the mosque in

the night of 22nd/23rd December, 1949." The defendant no. 4 also

deny the very existence of "Charan" or "Sita Rasoi" within the

premises of Babari mosque but then in para 22 of the written

statement (Suit-5) it says, "there is no Charan or Sita Rasoi

within the premises of Babari Mosjid and the place known as

Sita Rasoi is situated outer side the premises of the said

mosque."

2040

1953. Sri Deoki Nandan Agarwal, who initially filed Suit-5

and was plaintiff no. 3 therein, made a statement under Order X,

Rule 2 C.P.C. that the idols were kept under central dome inside

the building in the night of 22nd/23rd December, 1949. He,

however, admits his absence at the site on that day and stated

that he got this information from Mahant Paramhans Ram Das,

OPW-1. Sri Deoki Nandan Agarwal, however, added that the

above placement inside the building of the idols was done after

due ceremony. The above statement of Sri D.N. Agarwal could

not have been controverted by the learned counsel for the

plaintiffs (Suit-4). Though the process of Pran Pratishtha was

tried to be inquired from OPW-1 during cross examination by

learned counsels appearing for the Muslim parties in Suit-5 as is

evident from pages 46, 58, 78 and 124, but no question has been

asked from OPW-1 as to whether idol in question were placed

under the dome with or without ceremony as stated by Sri Deoki

Nandan Agarwal, plaintiff no. 3 (Suit-5) in his statement under

Order X Rule 2 C.P.C. Therefore, the said statement remained

uncontroverted particularly for the reason that none of the

witnesses, i.e., PW 1 to 32 has claimed that he was present when

the alleged incident of 22nd/23rd December, 1949 took place and

none could say anything on this aspect either way.

1954. OPW-1, Mahant Paramhans Ram was also examined.

He supported the version of placement of idol under the central

dome, inside the disputed building, in the inner courtyard, in the

night of 22nd/23rd December, 1949. OPW-1 has commenced his

deposition in December 1999 and at that time his age was 90

years. On page 41 and 42, he stated about the incident of 1934

and said that a dome was damaged at that time:

^^1934 dh ?kVuk esa f'k[kj dk vk/kk Hkkx ¼e/;@chp ds f'k[kj½ dk VwVk

FkkA chp okys f'k[kj dk vk/kk Hkkx pkjks rjQ ls VwVk FkkA chp okys

2041

f'k[kj ds vfrfjDr ogkWa fLFkfr fuekZ.k dk dksbZ vU; Hkkx ugha VwVk FkkA^^

¼ist 41½

"In 1934 incident, the half portion of the dome(the middle/

central dome) was broken. The half part of the middle

dome was broken from all sides. Except for the central

dome, no other part of the construction situated there was

broken." (ETC)

1955. On page 42 he said that when central dome was

damaged in 1934, no idol of Ram Lala was present thereunder.

He also said that people used to worship the place as also the

pillars whereunder the images were affixed:

^^ftl le; f'k[kj fxjk ml le; f'k[kj d s uhp s jkeyyk dh

dk sb Z e wfr Z ugh a Fk h f' k[kj dh uhp s dh Hk wfe ij i wtk ikB

gk sr k Fk k f' k[kj d s uhp s tk s [kEH k s F k s mle s a tk s e wfr Z ;k a

yxh Fk h mudk yk sx i wtk vp Zuk djr s Fk s mu [kEHkksa esa nsoh

&nsorkvksa dh ewfrZ;ka FkhaA ewfrZ;ksa esa guqeku vkfn nsoksa dh ewfrZ;ka FkhA

e/; f'k[kj d s uhp s dk sb Z [kE H k k ugh a Fk kA e/; f'k[kj d s

uhp s i zl wfr Hk wfe ] tgk a ij Hkxoku jke dk tUe g qvk Fk k

og LFk ku Fk kA e/; f'k[kj ds uhps dk tks Hkkx xHkZ xg ds #i esa Fkk

og LFkku rFkk mlds pkjks rjQ ml LFkku dks eSa xHkZxg dk LFkku

ekurk gwWaA rhuksa xqEctksa ds uhps dh Hkwfe rFkk ifjdzek ekxZ dh lEiw.kZ

Hkwfe xHkZx`g ds vUrxZr FkhA**¼ist 42½

“When the dome collapsed, there was no idol of Ram

Lala beneath it. ‘Pooja-Paath’ used to be performed on

the land beneath the dome. People used to offer ‘Pooja-

Archana’ to the idols carved out in the pillars beneath

the dome; those pillars had idols of male and female

deities engraved in these pillars. The idols included those

of demigods like Hanuman and so on. There was no pillar

beneath the middle dome. ‘Prasuti Bhumi’ - the land

where Lord Rama was born – was beneath the middle

2042

dome. I take the part beneath the middle pillar – which

was in the shape of the sanctum sanctorum – as also the

place surrounding it, to be the sanctum sanctorum. The

sanctum sanctorum encompassed the land beneath the

three domes and the entire land of the circumambulation

path.” (E.T.C.)

1956. Then, about the placement of idols in 1949, he said:

^^ewfrZ j[kus dk lu~ 'kk;n 1949 FkkA** ¼ist 108½

“The idols were placed probably in the year 1949.”(E.T.C)

^^tc ewfrZ j[kh xbZ] rc czEgeqgwrZ FkkA czg~eeqgwrZ dk le; 12-00

cts ds i'pkr vFkkZr jkf= esa rhu cts ds ckn czEg eqgwrZ gksrk gSA**

¼ist 108½

“It was ‘Brahm Muhurt’ when the idols were

installed. ‘Brahm Muhurt’ is the time after mid night i.e. at

3 AM.” (E.T.C)

^^ftl fnu ewfrZ j[kh xbZ mlds vkB ukS jkst igys ls ogkWa ij

tylk py jgk FkkA tylk ls esjk rkRi;Z jkek;.k ikB rFkk v[k.M

dhrZu ls gSA Hkou ds vUnj rFkk ckgj nksuksa LFkkuksa ij jkek;.k ikB gks

jgk FkkA Hkou ds vUnj Hkh yksx cSBs FksA ml le; tk s yk sg s d s

lh[kp s nhokj e s a yx s Fk s] mle s a dk sb Z rkyk ugh a yxk Fk kA

mu QkVdksa esa ;g rkyk ewfrZ j[kus ds ,d & nks ekg ckn yxk;k x;k

vFkok lky Hkj ckn yxk;k x;k] ;g eSa ugha dg ldrkA ;g dguk

xyr g S fd 22 fnlEcj 1949 dh jkr e sa fook fnr Hkou d s

vUnj d s H k kx e s a dk sb Z ikB ugh a g qvkA* * ¼ist 109½

“A function was going on for last 8-9 days, prior to

the day of installation of the idols. By function I mean,

recitation of Ramayana and Akhand (non-stop) ‘Kirtan’.

The recitation of Ramayana was taking place at both

outside and inside of the structure. People were there

inside the structure as well. At that time, no lock had been

put at the iron grills in the walls. I cannot tell whether

2043

locks were put on those gates about one or two months or

an year after installation of the idols. It is wrong to say

that no recitation took place in the inner part of the

disputed structure in the night of 22nd December, 1949.”

(E.T.C)

^^22@23 fnlEcj] 1949 dks eSa izkr% 7&8-00 cts rd ogkWa ij

jgk A ogkWa ij iqfyl igys ls Fkh rFkk cjkcj vkrh &tkrh FkhA

ftl fnu peRdkj dh ?kVuk gqbZ] ml le; peRdkj ds #i esa

izdk'k ds ns[ks tkus ds ckn gh vFkkZr yxHkx 3-00 cts jkr e sa pc wrj s

l s e wfr Z dk s gVkdj xHk Zx `g e sa LFk k fir dj fn;k x;kA

iz'u& ftl le; vki peRdkj dh ckr dj jgs gSa] ml le; vki

fookfnr Hkou ds vUnj Fks vFkok ckgjh lgu esa Fks\

mRrj& ml le; e S a ckgjh vk axu ¼vkmVj dk sV Z; kM Z ½ e s a

F k kA* * ¼ist 110½

“I remained there till 7-8 AM on 22/23 December,

1949. Police was already present there and kept visiting

regularly.

On the day of the miraculous incident i.e. just after

seeing the light as a miracle, the idols were removed from

the platform and installed in the 'Garbh-grih' (sanctum

sanctorum) at about 3 AM.

Question:- Where were you at the time of the said

miracle, whether inside the disputed structure or in the

outer courtyard?

Answer:- At that time I was in outer

courtyard.”(E.T.C)

^^23 fnlEcj 1949 dks tk s e wfr Z pc wrj s l s mBkdj f'k[kj

d s uhp s xHk Zx `g e s a j[k h xb Z ] og igys ls gh izk.k&izfrf"Br ewfrZ

Fkh] mldh izk.k izfr"Bk esjs lkeus ugha gqbZA lk{kh us Lo;a dgk fd

pc wrj s ij tk s H k h e wfr Z;k Fk h mudh i z k. k i z fr"Bk igy s l s

g qb Z Fk hA ^ ^¼ist 124½

2044

"The idol placed in the sanctum sanctorum

beneath the dome after being removed from the

chabutara on 23rd December, 1949, was deified from

before; its deification did not take place in my presence.

The witness himself stated-Whichever idols were placed

on the chabutara were deified from before." (E.T.C.)

^^ftl LFkku dks xHkZx`g crkrk gwWa og LFkku esjs fo'okl ds

vuqlkj rFkk leLr fgUnqvksa ds vuqlkj jkepUnz th dk tUeLFkku gSA

23 fnlECj 1949 dk s pc wrj s l s mBkdj ftl LFk ku ij e wfr Z

j[k h x;h mlh dk s gh e S a tUeLFk ku ekurk g wW a rFk k e wfr Z

j[ku s d s i wo Z H k h mlh LFk ku dk s e S a tUeHk wfe ekurk Fk kA* *

¼ist 142½

“The place termed as 'Garbh-grih' (sanctum

sanctorum) by me, is the birthplace of Ramchandra

according to my belief and all the Hindus. The very place

where the idols were placed on 23rd December, 1949,

after being removed from the platform, is considered as

Janmsthan by me and even before installation of the

idols, that place was considered Janmbhumi by me.”

(E.T.C)

^^tk s e wfr Z pc wrj s l s mBkdj chp d s f' k[kj d s uhp s

j[k nh x;h mle sa ,d cM +h rFk k ,d Nk sV h e wfr Z Fk h nk su k s a

e wfr Z ;k a j keyyk th dh Fk h aA ** ¼ist 143½

“The idols, which were removed from the platform

and placed beneath the central dome, had one big and

one small idol. Both the idols were of Ramlala.” (E.T.C)

1957. The above statement of OPW-1 shows that idols were

already there on the Chabutara which was in the outer courtyard

prior to 1949 and were only shifted from that Ram Chabutara

(outer courtyard) to the building under the central dome (inner

courtyard). About the existence of idol on Ram Chabutara, he

2045

deposed on page 55 and 75:

^^vukfn dky ls jkepcwrjk blhizdkj jkeyyk dh ewfrZ jkepcwrjs ij

vukfn dky ls fLFkkfir gSA^^ ¼ist 55½

"From time immemorial, the Ram Chabutara (has been)

like this, the idol of Lord Ramlala has existed over the Ram

Chabutara from time immemorial." (ETC)

^^tc eSa izFkeokj v;ks/;k vk;k rks mlds ckn ls rFkk mijksDr iz.k djus

ds chp dh vof/k esa jkepcwrjs ij eSaus cjkcj jkeyyk ds n'kZu fd;kA**

¼ist 75½

“Between my first arrival at Ayodhya and the aforesaid

resolution, I regularly had darshan of Ramlala at

Ramchabutara.” (E.T.C)

1958. Further, he claim to be an eye witness of shifting of

idol from Chabutara to the inner courtyard, i.e., under the

central dome.

1959. Sri D.N. Agrawal, plaintiff no. 3 (Suit-5) in his

statement under Order X Rule 2 dated 30.04.1992 has said that

the idols were kept under the central dome inside the building in

the night of 22nd/23rd December, 1949 after due ceremonies.

There is no evidence produced on behalf of the defendant no. 4

or 5 to disprove the above statement of plaintiff no. 3 or that of

OPW No. 1.

1960. In fact none of the witnesses of plaintiffs (Suit-4), i.e.,

defendant no. 4 (Suit-5) was present in the night of 22nd/23rd

December, 1949 on the disputed site when the alleged incident

took place. They had no occasion to say either way as to

whether the placement of idol was in accordance with due

ceremonies of Hindu scriptures or not, whether the same was

shifted from Ram Chabutara to the Central Dome or brought

from outside. Though in the written statement of defendant no. 5

(Suit-5), para 28, it is said, "However, Namaj has been offered in

2046

the mosque in question after 23rd December 1949 also and Ajan

has also been called." This statement, however, has not been

supported by any of the witnesses produced by the plaintiffs

(Suit-4) and defendant no. 4 (Suit-5). On the contrary, it is an

admitted position that since 23rd December, 1949 no muslim

person has entered the disputed premises (inner and outer

courtyard) as also that the idols placed inside the building under

the central dome are being continuously worshipped by Hindus.

1961. With respect to the term "mosque" used in plaint (Suit-

4), statement by the counsel for the plaintiffs (Suit-4) was made

on 28.08.1963 under Order X Rule 2 CPC that "mosque lies in A

B C D as shown in the plaint map (sketch map)."

1962. Another statement dated 20.01.1964 under Order X

Rule 2 CPC made by Mohd. Ayub counsel for plaintiff (Suit-4)

before the Civil Judge, says:

^^ckcjh efLtn ds jsfyax ds ckgj vkSj lnj QkVd ds

ckm.Mªhoky ds vUnj iwjc nfD[ku dh rjQ ,d 17 x 21 QhV dk

pcwrjk gS ftl ij ydM+h ds LV~SDpj dk ,d oqMu VSEiy cuk gS ftlesa

dksbZ Hkh fgUnw dh ewfrZ;ka u dHkh Fkh u vc rd gSA og txg Hkh

eqlyekuksa dh ekLd dk fgLlk gSA - - - - - ckcjh efLtn ds lnjh

QkVd ls vUnj nkf[ky gksus ij mlds nkfguh rjQ tks Hkh rkfejkr gS

og fnlEcj 1949 ds igys ogka ij dHkh ugha FkhA mUgsa fnlEcj 1949 ds

ckn fdlh us rkehj dj fy;k gksxkA ckcjh efLtn ds esu fcfYMax ds

mRrj rjQ pkgjnhokjh ds vUnj Hkh fnlEcj 1949 rd dHkh dksbZ

rkehjkr ojkde bekjr ;k pcwrjk oxSjg dHkh ugha jgsA ml txg ij

tks pcwrjk lhrk jlksbZ ds uke ls eqn~nkyge dgrs gSa mls fnlEcj 1949

ds ckn gh eqn~nkyge us ;k fdlh us cuk;k gSA**

"on the outer side of railing of Babri mosque and

inside the boundary of main gate towards south-east, there

is a platform measuring 17/21 feet over which a wooden

temple is built in wooden structure. No idols of Hindus ever

2047

existed nor exist inside the same. The place is also a part of

mosque of Muslims.. . . .On entering through the main gate

of Babri mosque, the construction lying on right side, were

never in existence prior to December, 1949. The same must

have been constructed by someone after December 1949.

Towards north of main building of Babri Mosque inside the

boundary wall, upto December 1949 A.D. there was never

any construction or building or Chabutara etc. Over that

place, the Chabutara termed as Sita Rasoi by the

defendants has been constructed either by defendants or

some else after December 1949." (E.T.C.)

1963. In para 5 of the plaint (Suit-4), the plaintiffs have tried

to make a distinction between mosque and the building by

stating that in the mosque but outside the main building of the

mosque there was "Chabutara". It is thus evident that the case of

the plaintiffs (Suit-4) is that inside the mosque (which they

denote as A B C D) which means the inner and outer courtyard

of the building, there was no idol prior to 22nd December, 1949

and it was placed surreptitiously in the night of 22nd/23rd

December 1949.

1964. Most of the witnesses produced by Hindu parties have

clearly stated that idols were kept on Ram Chabutara even

before 1885 and that was being continuously worshipped by

Hindus. Sita Rasoi and Bhandar in the outer courtyard also

existed prior to 1885 and in any case before 22.12.1949.

1965. OPW 1 and OPW 2 have said that the idol of Ram

Lala kept on Ram Ram Chabutara in the outer courtyard was

placed in the inner courtyard under the central dome on 22nd/23rd

December, 1949. This pre-supposes and admits the position that

the idols of Ram Lala existed in the mosque denoted by the

2048

letters A B C D in Suit-4 since much before 22nd December,

1949 and it was not kept in the mosque as denoted by the letters

A B C D for the first time in the night of 22nd/23rd December,

1949. The premises known by the plaintiffs (Suit-4) as mosque

already had the idols of Lord Ram Lala and in the night of

22nd/23rd December, 1949, was shifted from outer courtyard to

inner courtyard. In the statement under order Order X Rule 2

CPC the plaintiffs through counsel have tried to dispute even the

structures named as "Sita Rasoi" and "Bhandar" in the outer

courtyard till 22.12.1949 though many of their witnesses have

admitted their existence prior to the said date.

1966. It is an admitted case of the plaintiffs (Suit-4) that in

Suit-1885 a map was prepared by the Court's Commissioner

which is Exhibit A 25 (Suit-1). There, in the outer courtyard,

three structures were shown, one on the north-west side termed

as "Sita Rasoi", another on the east side but right to the eastern

entry gate termed as "Chappar" or "Bhandar" and third on the

east-south side which was called "Ram Chabutara" and which

was the subject matter of Suit-1885. This map was never

doubted in Suit 1885 by defendant no. 2 therein.

1967. PW 1, on page 24 of his statement, while admitting the

said Chabutara measuring about 17x21 feet did not deny

presence of idols thereon.

^^bl pcwrjs ij fgUnw nsorkvksa dh ewfrZ vkus tkus okyksa dks

fn[kk;h ugha nsrhA - - - - - -;g ugha crk ldrs fd pcwrjs ij ewfrZ;ka

fdlh ydM+h ds flagklu ij Fkh ;k ugha eSa ugha crk ldrkA**

"Idols of Hindu deities on this Chabutara are not

visible to the visitors. ...... I cannot tell whether idols were

seated on any wooden throne or not." (E.T.C.)

1968. Thus, in the pleadings, they have tried to dispute the

very existence of any structure of worship of Hindus even in the

2049

outer courtyard since their stand is that the idols were kept for

the first time in the Mosque on 22nd/23rd December, 1949 and

while saying so, they have treated the Mosque as a whole, i.e.

denoted by letters ABCD in the map appended to plaint (Suit-4)

which comprised of the entire area of inner courtyard and outer

courtyard. This stand, we find, stood contradicted by their

witnesses who have admitted not only the existence of certain

structures in the outer courtyard but also visit of Hindus to those

structures and is palpably wrong.

1969. The extract of relevant statement of some other

witnesses of plaintiffs (Suit-4) are as under:

(a)PW-1, Mohd. Hashim

**iwjc ds ckgjh njokts ls nf{k.k dh rjQ tks pcwrjk gS og 17

x 21 fQV gSA bldh ÅWapkbZ ,d ehVj gSA blds Åij Niij iM+k gSA**

¼ist 24½

"Towards the south of the outside gate in the east lies

a chabutra measuring 17x24 feet. Its height is 1 metre. It

has a thatched roofing." (E.T.C.)

^^tc v;wc lkgc ds ;gkWa y[kuÅ uksfVl cuokus vk;s Fks rc

rd ;g NIij pcwrjs ij dk;e FkkA eSaus uksfVl esa NIij dh ckr

blfy, ugha fy[kokbZ D;ksafd 1885 esa nwljs yksx eqdnek gkj pqds FksA

¼isij ua0 44d tks uksfVl vaxzsth esa gS mldks fgUnh esa rjtqek djds

xokg dks lquk;k x;k vkSj iwNk fd bl uksfVl eas fy[kk gS fd pcwrjs

ij ydM+h dk rEcw uqek LV~Dpj gS ;g lgh gS ;k ughaA xokg us mRrj

fn;k½ ;g vUnj ls Fkk vkSj tks uksfVl esa fy[kk gS og lgh fy[kk gSA - -

blds ckjs esa eq>s ugha ekywe fd pcwrjk 17 x 21 okyk dc ls dk;e

gSA - - -bl pcwrjs ds iwjc mRrj dh rjQ ,d isM+ FkkA** ¼ist 25&26½

“The chabutra had this thatched roofing till I went to

the house of Ayub Sahib in Lucknow to get notice prepared.

I did not get the thatched roofing mentioned in the notice

because other people had lost the case in 1885. (Paper no.

2050

44Ka being a notice in English was read out to the witness

after being translated into Hindi and a question was put to

him as to whether or not it was mentioned in this notice

that there is a wooden tent shaped structure on the

chabutra. On being so queried, the witness replied) It was

so from within, and what is written in the notice, is correct.

. . . . . .In this behalf I do not know from when the chabutra,

with the dimension of 17x21, exist. . . . . . Towards the

east-north of this chabutra lay a tree." (E.T.C.)

**iz'u& if'pe dh rjQ tc efLtn ds fy, tkrs Fks rks pcwrjs

dks blfy, ugha ns[krs Fks fd fgUnw yksx iwtk djrs Fks\

mRrj& ge ognkfu;r vkSj fujadkj dks ekuus okys gSa blfy, dksbZ

rlohj ns[kuk ugha ilan djrsA

iz'u& D;k vkidks ekywe Fkk fd pcwrjs ij rLohj ;k ewfrZ gS ftlls

vki ml rjQ ugha ns[krs Fks\

mRrj& pcwrjs dh ckcr eqdnek gkjk gqvk Fkk blfy, ge dksbZ rootks

ugha nsrs FksA** ¼ist 26½

"Question:- While going to the mosque towards the

west, did you not see the chabutra because Hindus

worshipped there?

Answ194.er:- We believe in 'vahdaniyat' and 'nirankar'

(formless God); that's why I do not want to see any picture.

Question:- Did you know there to be a picture or idol, due

to which you did not see towards that side?

Answer:- We had lost the case in connection with the

chabutra, hence we did not attach any importance to

it.”(E.T.C.)

^^tks igys eSaus dgk Fkk iqtkjh pcwrjs ij cSBrs Fks og xyr gS

ogkWa ij dqN yksx cSBrs Fks vksj ;g ckr lgh gSa ;g vke vkneh fgUnw Fks

ij iqtkjh ;k lk/kq ugha Fks ;s yksx v;ks/;k ds ugha FksA - - - - -eSaus flQZ

,d utj ns[kk vkSj flQZ ,d ckj ns[kk** ¼ist 27½

2051

“My earlier statement that priests used to sit on the

chabutra, is wrong. Some people used to sit there, and this

fact is true. These ordinary people were Hindus, but not

priests or saints. . . . . . . . I threw just one glance and saw

only once.” (E.T.C.)

^^pcwrjs ds mRrj ,d uhe dk nj[r FkkA - - - - - - -lu ~

1949 e s a lhrkjlk sb Z Q'k Z d s cjkcj Fk h lhrkjlk sb Z ij p wYgk

pk Sdh c syuk p wu s xkj s dk cuk Fk k o" k Z 1949 e saA - - - - - -

-'kq: esa ge yksx Hkh mldks djhc ls ns[krs Fks ml le; dksbZ ruko ugha

FkkA mldk s vke yk sx lhrk jlk sb Z dgr s Fk sA geus ;g ugha

ns[kk fd vke yksx lhrk jlksbZ dk n'kZu djus tkrs FksA** ¼ist 27½

“There was a neem tree to the north of

chabutra. . .In 1949, Sita Rasoi was on a level with the

floor. The 'chulha' (hearth), 'chauki' and 'belna'

(rolling pin) at Sita Rasoi, was made of lime and brick

powder in the year 1949. . . In the beginning, we also

looked at it from a close range. There was no tension at

that time. People in general called it Sita Rasoi. We did

not see general public going to have darshan of Sita

Rasoi.”(E.T.C.)

**i wo h Z QkVd l s vUnj vku s ij ckgjh nhoky d s

vUnj mRrj rjQ ,d yEck lk NIij Fk k og Hk.Mkj ij Fk k

;k ugha ;g ugha crk ldrkA ;g yEck lk NIij uhe ds isM+ ds uhps

Fkk yksx ml NIij esa jgrs Fks ij eq>s ugha ekywe dkSu yksx jgrs FksA

bl NIij d s uhp s fgUn w yk sx jgr s Fk s e qlyeku yk sx ugh a

jgr s Fk sA - - - - - - - dqdZ 'kqnk LFkku ds if'pe dh rjQ tk s

ifjd zek cuh Fk h og ifjdzek ds fy, ugha nhoky dh ejEer ds fy,

cuh FkhA** ¼ist 31&32½

"On coming inside through the eastern gate there

was a spacious shed towards the north inside the outside

wall. I cannot tell whether it was a store house or not. This

2052

long shed was beneath the neem tree. People lived in the

shed but I do not know who they were. Those who lived

under this shed were Hindus, not Muslims.. . . . . . . . The

Parikrama (circumambulation), which was built towards

the west of the attached place, was for the repair of the

wall, not for parikrama." (E.T.C.)

**d qd Z 'k qnk tk;nkn dh ckgjh nhoky d s vUnj nk s

NIij Fk s ,d pc wrj k ij Fk k vk S j n wlj k i wo h Z nhoky l s

lVdj uhe d s i sM + d s uhp s Fk kA ** ¼ist 32½

"Inside the exterior wall of the attached property

were two sheds and a chabutra (rectangular terrace).

Another chabutra was adjacent to the eastern wall and

was beneath the neem tree.” (E.T.C.)

**Qk sV k s u a- 56 tk;nkn e qrnk fo;k d s ckgjh nhokj d s

i wo h Z x sV l s v anj tku s dh ckn nf{k.k dh rjQ tk s 21 x

17 dk pc wrj k g S dh g S A ysfdu mlesa 1949 ds ckn rCnhfy;ka dh

x;h FkhaA - - - - - - - -QksVks ua- 57 ml ydM+h ds VsaVuqek pcwrjs ij

cuk;h x;h pht gS ftldk ftdz igys vk;k gS ysfdu mls 1949 ds

ckn [kwclwjr cuk fn;k x;kA igys ;s ekewyh rjg ls cuk gqvk Fkk ckn

esa bls [kwclwjr cuk;k x;k FkkA igys ugha Fkk ckn esa cuk gksxkA**

¼ist 62½

"Photograph no. 56 represents 21 x 17 chabutra

which is seen in the southern side on going inside

through the eastern gate of the outer wall of the disputed

property. But changes were effected after 1949. . . . . . . .

Photograph no. 57 represents an object made on wooden

tent-shaped chabutra which has found mention earlier but

it was beautified after 1949. Earlier it had been

constructed in an ordinary manner but later it was

beautified. It did not exist earlier. It may have been

constructed later.” (E.T.C.)

2053

^^ml ;kfpdk esa eSaus 1885 ds egUr j?kqcj nkl ds eqdnesa dk

reke ftdz fd;k FkkA jÄqcj nkl v;ks/;k ds jgus okys Fks ysfdu eSa

ugha dg ldrk fd fueksZgh v[kkM+k ls mudk D;k rkYyqd FkkA - - - - -

- - - -egUr j?kqcj nkl ckcjh efLtn esa chp dh nhokj ds lkFk tks

pcwrjk Fkk mls eafnj cukus ds nkosnkj FksA eq>s ekywe ugh fd j?kqcj

nkl bl pcwrjk ij xSj dkuwuh <ax ls dkfct FksA vlxj vyh ml

eqdnesa esa izfroknh FksA ;g Bhd gS fd ml eqdnesa esa vlxj vyh u s

tokcnkok nk;j fd;k Fk k vk S j ;g nyhy nh Fk h fd 1857

dh xnj e s a egUr j?k qcj nkl u s tcjnLrh dCtk djd s

pc wrj k cukdj ml ij ,d ydM +h dk e afnj cuk fn;k vk S j

ml ij ;kuh [k kyh pc wrj s ij i wtk&ikB crk S j e afnj d s

dh tk jgh g SA geus ml nkos dks ugha i<+k blfy, ugha dg ldrs

fd vlxj vyh us vius tokc nkos esa fy[kk;k gks fd iwjc ds njokts

ls vUnj vkdj mRrj dh rjQ cSjkfx;ksa us viuk Hk.Mkj cuk fy;k

gks ;k lhrk jlksbZ cuk yh gks ;k pdyk] csyu vkSj pwYgk cukdj

iwtk&ikB djrs gksaA** ¼ist 67&68½

“In that petition, I had considerably made mention of

the 1985 case of Mahanta Raghubar Das. Raghubar Das

was a resident of Ayodhya but I cannot say what relation

he had with the Nirmohi Akhara. . . . . . . . . Mahanta

Raghubar Das was claimant for the construction of a

temple on the chabutra which stood along the central wall

in the Babri mosque. I do not know whether Raghubar Das

was an illegal occupant of this chabutra. Asgar Ali was a

respondent in that case. It is true that Asgar Ali had filed

reply in the said litigation and contended that in the 1857

revolt Mahanta Raghubar Das had forcibly captured and

constructed a chabutra and had made a wooden temple

thereon. On that, that is, on the vacant chabutra, pooja-

paath is being performed as in a temple. I did not go

through that claim; hence, I cannot say whether Asgar Ali

2054

had mentioned in his counter claim that on entering

through the eastern gate the Bairagis (recluses ) had

constructed a store house towards the north or had

constructed Sita Rasoi or they used to perform pooja-

paath by constructing chakla (rolling disc), belan (rolling

pin) and chulha (hearth).” (E.T.C.)

^^fQj dgk fd 1885 dk nkok iwjs ,fj;k dk Fkk ftls egar j?kqcj

nkl gkj x;s FksA eq>s ml eqruktk ,fj;k dk jdck ekywe ugha gSa lhrk

jlksbZ ds ckjs esa ml eqdnesa esa dksbZ >xM+k ugha Fkk og eqdnek flQZ

pcwrjk ds ckjs esa Fkk ftls og eafnj cukuk pkgrs FksA**¼ist 72½

“(Again stated) The 1885 claim was for the whole

area and Mahanta Raghubar Das lost it. I do not know the

dimension of the disputed area. There was no dispute over

Sita Rasoi in that case. This case was only in respect of the

chabutra which he wanted to change into a

temple.”(E.T.C.)

^^tks txg pcwrjk dh lwjr esa fgUnw yksxksa ds dCts es gS fQj

dgk ogkWa fgUnqvksa dk dksbZ dCtk ugha gS reke txg efLtn dh

gSA**¼ist 113½

"The place being in the shape of chabutra is in the

possession of Hindus. (Then stated) Hindus have no

possession over there; most of the place belongs to the

mosque.” (E.T.C.)

**;ksX; odhy lkgc us xokg dk /;ku mlds c;ku 6-8-96 okys

dh vksj fnyk;k tgka mlus dgk Fkk ^^pcwrjs ij NIij vkSj rEcwuqek

ydM+h ds eafnj ij ckgj ds ,d nks yksx fgUnqvksa ds jgk djrs**] lqudj

xokg us tckc fn;k eSaus ,slk c;ku ugha fn;k eSaus ;g dgk Fkk fd

ifCyd ds yksx cSBrs Fks vkSj eSaus NIij ds ckjs esa c;ku fn;k Fkk eafnj

ds ckjs esa ugha dgk FkkA** ¼ist 126½

“When the learned counsel drew the attention of the

witness to his 6.08.1996 statement wherein he had stated

2055

one or two Hindus used to reside at the shed and tent-like

wooden temple on the chabutra, the witness responded,

saying that he had not given any such statement and that

the public used to sit there and that he had given a

statement about the shed but not about the

temple.”(E.T.C.)

^^;g xyr gS fd dqdZ gksus ds igys Hkh vUnj iwtk ;k n'kZu ds

fy, fdlh ij ikcUnh ugha Fkha 1885 ds ckn ogkWa iwtk ij tkus dk dksbZ

eryc gh ugha FkkA** ¼ist 163½

“It is wrong that before the attachment there had

been no restriction on anybody's offering prayer or having

darshan inside. There were no cause at all to go there to

perform pooja after 1885." (E.T.C.)

*eSaus fely nkok uEcj 1@89 esa yxk gq, uD'k k tks yVBk ij

rS;kj fd;k x;k gS] n s[ k fy;k g S] ;g 1885 okys eqdnesa dh fely ls

fy;k x;k gS] mldh lgh udy g S vkSj ;g eqln~ndk gS] ;g

,fDt0 ,&25 g SA ;g uD'k k lgh g S a [kqn dgk fd blh ud'k s

dk c q fu;kn ij gekj s gd e sa fMdz h 1885 e s a ikl g qb z Z F k h aA **

¼ist 166½

"I have seen the map prepared on the cotton plot

and filed on the record of claim no. 1/89. It is taken from

the record of the 1985 case; it is its true copy and it is

certified and it is exhibit no. A-25. This map is correct.

(Himself stated) On the basis of this very map a decree

was passed in 1885 in our favour." (E.T.C.)

**flQZ ;gh pcwrjk 1885 ds eqdnek esa lfEefyr eqrukft;k Fkk]

fookfnr FkkA bl uD'k s e s a tk s ckdh tk;nkn ;k n wlj h fo'k s" k

pht s a fn[k kb Z xb Z g S a] mud s ckj s e s a dk sb Z ruktk ;k fookn

ugh a Fk kA ;g Bhd gS fd egUr j?kqcj nkl us 1885 okys eqdnesa esa

bl pcwrjs ij efUnj cukus dh btktr ekWaxh FkhA** ¼ist 167½

"Only this very chabutra was involved and disputed

2056

in the 1885 case. There was no dispute over the rest of

property or other particular things shown in this map. It

is true that Mahanta Raghubar Das had by means of the

1885 case sought permission for construction of temple on

this chabutra." (E.T.C.)

(b)PW-2, Hazi Mahboob Ahmed

^^lhrk jlk sb Z dk p qYgk pk Sdk c syuk ge yku e s a n s[ k k

djr s Fk s tc ge efLtn e s a tkr s Fk sA - - - yk sx dgr s Fk s

fd ;g lhrk jlk sb Z g S A eSaus ogkWa ij fdlh dks n'kZu djrs tkrs

ugha ns[kkA** ¼ist 54½

“When we went to the mosque, we saw chulha

(hearth), chauka, belna (rolling pin) of Sita rasoi ( Sita's

kitchen). . . . . . . . People said that it was Sita Rasoi. I

did not see anybody going there for darshan." (E.T.C.)

^;g ekywe gS eq>s fd ckgj dk yku] pcwrjk vkSj lhrk jlksbZ dk

eqdnek 1884 esa pyk FkkA** ¼ist 62½

“I know that a case went on in 1884 in connection

with the outside lawn, chabutra and Sita Rasoi." (E.T.C.)

^^iz'u%& D;k ;g le>k tk;s fd lhrk jlksbZ pcwrjk vkSj NIij

ls eqlyekuksa dks dksbZ rkYyqd ugha Fkk\

mRrj& th ugha] og tehu gekjh Fkha

ogk W a ml yku e s a fgUn w yk sx vkr s tkr s t:j Fk sA eSa

ugha crk ldrk fd og D;k djus vkrs tkrs FksA** ¼ist 89½

“Question:- Should I have the impression that

Muslims had no concern with Sita Rasoi, Chabutra and

shed ?

Answer:- No, Sir. That land was ours.

The Hindus certainly frequented the lawn there. I

cannot say what was the purpose of their doing

so."(E.T.C.)

**lhrk jlk sb Z ogka ls fdruh nwjh ij Fkh eSa ugha crk ldrk

2057

ysfdu og ogh a ij Fk h vkSj yku dh yEckbZ vkSj pkSM+kbZ eSa igys gh

crk pqdk gwwaA** ¼ist 98½

"But I cannot tell how much away Sita Rasoi was

from there. But it was at that very place and I have already

told the length and width of the lawn." (E.T.C.)

**tc ge efLtn esa nkf[ky gksrs Fks rks lgu esa ck;h rjQ ,d

pcwrjk FkkA og pcwrjk dEikm.M ds chp es Fkk ck;h rjQA ;g pcwrjk

21 x 17 Ldok;j QqV ds djhc FkkA** ¼ist 115½

"When we entered the mosque, there was a chabutra

(rectangular terrace) to the left of court-yard. The

chabutra was in the middle of the compound and was

towards the left. This chabutra was nearly 21x17 square

feet." (E.T.C.)

**bl pcwrjs ij dqN ugha gksrk Fkk ;g [kkyh iM+k jgrk Fkk dHkh

dHkh yksx bl ij cSBs utj vkrs FksA bl ij ,d Qql dk NIij Hkh

j[kk x;k FkkA** ¼ist 115½

"Nothing was done on this chabutra. It remained

vacant. People were sometimes seen sitting on it. It also

had a thatched roof." (E.T.C.)

(c)PW-3, Farooq Ahmad

**v;ks/;k esa fgUnw esys gksrs gSa tSls fd jkeuoeh] ifjdzek esyk

vkSj lkou esyk] bu esyksa ij fgUnw yksx bdV~Bk gksrs gSa ;s yksx efLtn

Hkh ns[kus vk;k djrs gSaA bl pc wrj s dk s n s[ ku s dh xjt l s

cg qr l s fgUn w vk S j e q fLye yk sx lHk h tkr s g S aA Åij crk;s

x;s esyksa ds oDr bdV~Bk gksus okys fgUnw yksx [kkl rkSj ls bl pcwrjs

ij ugha tkrs D;ksafd ogkWa dksbZ p<+kok ugha gSA e sy s d s oDr Hk h gj

etgc d s yk sx pc wrj k n s[ ku s vkr s Fk sA - - --;g xyr gS fd

bl NIij esa ydM+h dk vkSj pkWanh dk e<+k gqvk rEcwuqek dksbZ eafnj Hkh

cuk gqvk gksA** ¼ist 29½

“Hindu fairs are held at Ayodhya such as

Ramnavami, Parikrama Mela and Sawan Mela. Hindus

2058

gather in these fairs. They also come over to see the

mosque. Many Hindus and Muslims used to come over to

see this platform (Chabutara). The Hindus assembling at

time of the said fairs, did not particularly visit this platform

(Chabutara) because there was no offering (chadhawa).

Even on occasion of the fairs, people of all religions

used to come to see the platform (Chabutara). . . . . . . It

is wrong that there was any tent like temple covered by

silver and made of wood, under this thatched roof.”

(E.T.C)

^*jaxhu QksVks dk ,yce dh vksj fnyk;k QksVks ua0 57 dks ns[kdj

xokg us tckc fn;k ;g Qk sV k s mlh pc wrj s vk S j NIij dk g S

ftldk ftdz py jgk gS ysfdu blesa cgqr lh ,slh phtsa fn[kk;h x;h

gS tks mu fnuksa ogkWa ij ugha FkhA** ¼ist 30½

"(On looking at photograph no. 57 of the colored

photo album, the witness stated) this photograph is of the

same platform (Chabutara) and thatched roof, which are

currently being discussed, but it has many such things in it

which were not there in those days." (E.T.C)

^ *j ke uke dk tc dhr Zu gk sr k Fk k rk s ge Hk h [kM + s

gk s tkr s Fk s j ke uke y s y sr s Fk s j ke vYykg vk S j [k qnk lc

,d gh g S aA * * ¼ist 36½

“Whenever the Kirtan in the name of Rama was

performed, we also used to stand up, take the name of

Rama. Rama, Allah and Khuda are all same.” (E.T.C)

^^;s Bhd gS fd bl ,yce e sa yxk, x, reke Qk sV k s

gekj s odhy lkgc dh ek St wnxh e s a [k h ap s x, Fk sA ; s reke

Qk sV k st fook fnr tehu vk S j tk;nkn d s g S aA * * ¼ist 61½

“It is true that all the photographs contained in this

album, had been taken in the presence of my counsel.

All these photographs are of the disputed land and

2059

property.” (E.T.C)

^^tk s pdyk c syu vk S j p wYg k d s fu'k kukr cu s Fk s] og

geu s 1949 l s igy s H k h n s[ k s F k sA ^ ^ ¼ist 95½

“The existing marks of chakla, belan and hearth

(chulha), had been seen over there by me even before

1949." (E.T.C)

(d)PW-4, Mohd. Yasin

^^esjh gks'k esa bu txgksa ij ;kuh efLtn ds ckgjh lgu esa dHkh

dksbZ fgUnw ugha vkrk FkkA eS au s fdlh fgUn w dk s u dHk h pdyk

c syuk d s ikl n s[ k k vk S j u gh Åij crk; s x; s mRrjh ;k

nfD[kuh NIij d s ikl n s[ k kA ** ¼ist 18½

“In my memory, no Hindu ever came to these places

i.e. in the outer courtyard of the mosque. I never saw any

Hindu near the Chakla-Belna nor near the

aforementioned northern or southern thatched roof."

(E.T.C)

(e)PW-6, Mohd. Yunus Siddiqui

^^;g eSaus tku fy;k Fkk fd ;g pc wrj k 1885 l s pyk vk

jgk Fk kA ** ¼ist 11½

“I came to know that this chabutra had been in

existence since 1885.”(E.T.C.)

(f)PW-7, Sri Hashmat Ullah Ansari

**bl ckgjh lgu e sa tgk W a ; s pc wrj s Fk s dHk h uekt

ugh a i<h x;hA* * ¼ist 30½

"Namaz was never offered at the place where these

Chabutras (raised platforms) were built in this outer

courtyard.” (E.T.C.)

**;g Åij crk;k x;k pc wrj k efLtn e s a ' k k fey ugh a

Fk kA bl pc wrj s ij n wlj s yk sx ;kuh fgUn w yk sx c qr j[ku s

l s igy s H ktu&dhr Zu cx Sjg fd;k djr s Fk sA * * ¼ist 85½

"This Chabutra, mentioned above, did not form

2060

part of the mosque. Other people, that is, Hindus, before

laying idol, used to perform ‘Bhajan-Kirtan’, etc. on this

Chabutra." (E.T.C.)

(g)PW-8, Sri Abdul Aziz

^^ogkWa ij ,d pcwrjk Fkk tks nfD[ku dh rjQ Fkk ml ij dksbZ

ydM+h dk flagklu ugha Fkk og pcwrjk [kkyh FkkA iwohZ QkVd ls vUnj

nkf[ky gksus ij ;g pcwrjk ck;s gkFk dh vksj vkrk FkkA** ¼ist 43½

“There was a platform towards south. It did not have

any wooden throne over it. The platform was vacant. On

entering through the eastern gate, this platform lay on the

left side.” (E.T.C)

(h)PW-23, Mohd Qasim Ansari

^^;g uD'kk Hkh Bhd gS ij blesa tks jke pcwrjk ;k lhrk

jlksbZ ;k vU; ckrsa fy[kh gSa mls eSa ugha ekurkA bl uD'k s e s a tgk a

pc wrj k fn[k;k x;k g S og pc wrj k rk s Fk k ij ble s a tk s j ke

pc wrj k fy[k k x;k g S og xyr g S blh i zdkj bl uD'k s e s a

fn[k k;h txg rk s ml le; Hk h Fk h ij ble s a tk s uke

fn[k k;k x;k g S og xyr g SA* * ¼ist 42½

“This map is also correct, but I do not take to be

correct Ram Chabutra or Sita Rasoi or other things that

are marked herein. There was certainly a Chabutra but

marking it as Ram Chabutra herein is incorrect. In this

very manner, the place shown in this map existed at that

time also but the name shown herein is

incorrect.”(E.T.C.)

1970. Almost all the witnesses produced on behalf of the

Hindu parties, other than those who have appeared as experts,

have stated that they were worshipping the idols of Lord Rama

at Ram Chabutara since much earlier from 1949 besides Sita

Rasoi where there were images of Chakla, Belan, Chulha etc.

Only witnesses of Nirmohi Akhara, i.e., DW 1 to DW 3/20 have

2061

also added and claimed that they also worshipped the idols

inside the building under central dome in the inner courtyard

since Nirmohi Akhara is claiming the building as temple

throughout and existence of idols therein simultaneously.

1971. Be that as it may, in view of the overwhelming

evidence as also the evidence of Muslim side, we have no

manner of doubt that in the outer courtyard, there existed at least

three structures; (1) A Chabutara, called as 'Ram Chabutara'; (2)

A Chhappar, termed as 'Bhandara' on north east side of gate of

outer boundary wall and a place called as 'Sita Rasoi' or

'Kaushalya Rasoi' or "Chhathi Pooja Sthal" on the north west

side. All these three places existed since prior to 1885 inasmuch

in Suit-1885 Commissioner's map denoted all these places and

existence thereof in the map is not disputed, though the

terminology used is sought to be disputed by some of witnesses

of the Muslim parties. Further in the map prepared by Sri Shiv

Shankar Lal, Pleader, submitted to the Court along with his

report on 25.5.1980, these three places have been shown. In the

objections filed by the defendants no. 1 to 5 (Suit-1) at that time,

we find that there is no allegation regarding wrong preparation

of the map but what was objected is that in respect to certain

parts, nomenclature given by Sri Shiv Shankar Lal was not

acceptable to them. In this context, it was observed by the Civil

Judge, Faizabad in his order dated 20.11.1950 admitting

Commissioner's report as evidence, that the nomenclature given

by Sri Shiv Shankar Lal shall not be final and shall be

considered in the light of the evidence adduced by the parties.

1972. Now in Suit-4 the pleadings of the plaintiffs are that

the idols and object of worship were placed inside the

"building" in the night intervening 22nd/ 23rd December, 1949 as

2062

alleged in para 11 of the plaint and the term "building"

according to the averments made in the plaint means the area

denoted by letters ABCD in the map appended to the plaint.

This area covers the entire disputed area, i.e., outer courtyard

and inner courtyard. It is not their case that the idols though

existed inside the said building but were kept under the three

dome structure for the first time on 22nd/23rd December 1949. In

view of the fact that three non-Islamic structures were

continuing in the outer courtyard for the last several decades and

used to be visited by the Hindus for worship, onus lies upon

them to prove that in this entire building which they claim to be

the area covered by the letters ABCD in the map appended to

the plaint (Suit-4) no idol at all ever existed before 23rd

December 1949. They have miserably failed to prove it.

1973. The case of the plaintiffs (Suit-5) and other Hindu

defendants (except Nirmohi Akhara) is very clear that the idols

were already present on Ram Chabutara in the outer courtyard

and in the night of the 22nd/23rd December 1949, the same were

placed under the central dome of three dome structures in the

inner courtyard. There is enough evidence to prove, as per the

above discussion, that the idols kept at Ram Chabutara were

being worshipped by Hindus since a long time. No doubt or

dispute has ever been raised earlier about the consecration of

those idols, nor in the present cases it is pleaded that those idols

(at Ram Chabutara) were not consecrated in accordance with the

Shastrik procedure.

1974. Sri Deoki Nandan Agarwal in his statement under

Order X Rule 2 has also said that idol which was kept under the

central dome in the three dome structure in the inner courtyard

on 22nd/23rd December 1949 was a Chal Vigrah and this

2063

statement he has made again on the basis of the information

received from OPW 1. We find from a perusal of the cross

examination of OPW 1 that on this aspect and in respect to the

idol so placed, no question has been asked whether the

statement of Sri Deoki Nandan Agarwal on this aspect is correct

or not and whether OPW 1 gave this information to him or not.

This statement of plaintiff 3, Sri D.N. Agarwal, therefore,

remained uncontroverted.

1975. The existence of Ram Chabutara and Sita Rasoi in the

precinct of disputed site since long in our view cannot be

doubted though a serious attempt has been made on this aspect

also. We presume at this stage that the building in dispute was

constructed in 1528 AD at the command of Babar by Mir Baqi.

The dividing wall having windows etc. was not constructed at

that time. This partition was made after 1855 AD as they

claimed. The suggestion of pro mosque parties is that the

alleged Chabutara came into existence sometimes between 1855

to 1860 and despite some orders passed by the authorities of the

then Government, for removal of the said Chabutara the same

continued to exist and was not removed, but this also, we find,

has not been proved.

1976. The fact remains that it is now a established fact which

is not challenged by the Muslim parties that the Chabutara on

the south eastern side of the disputed building has been

continuing atleast from 1857 and onwards. Though an attempt

has been made to dispute whether any idol was kept on the said

Chabutara and whether worship was continuously going on

thereat but this also has not been proved. On the contrary, we

find that there is abundant evidence to show that Hindus were

worshipping the said Chabutara believing that it symbolises and

2064

depicts the birthplace of Lord Rama and that some idol(s) also

existed thereat.

1977. There are documentary as well as oral evidence

available on record some of which we discuss hereinafter.

1978. The application dated 25.09.1866, Exhibit A-13 (Suit-

1) (Register 6, page 173-177) submitted by Mohd. Afzal,

Mutawalli Masjid Babari situated at Oudh says:

**djhc eghuk ds vlkZ gksrk gSa fd rqylhnkl oxSjk cSjkfx;ku

tue LFkku us ,d NksVh lh dksBjh c&bjknk j[kus ewjr oxSjk ds pksjh

ls igj Hkj ds vlkZ esa vUn:u bgkrk r;~;kj djyh ----------- 'kck'kc gek

pcwrjk cSjkfx;ku us cuokfy;k mlds cu tkus ls fdl dnj Qlkn c<+

x;k vc NksVh dksBjh cukbZ gS ---------- vtZ gky djds mEehnokj balkQ

gwa fd okLrs fxjkus dksBjh etdwj ds gqDe gqtwj lkfnj gks fd Qlkn

cSjkfx;ku ls efLtn egQwt+ jgs okftc Fkk vtZ fd;kA^^

"About a months back the respondents Tulsidas etc.

with the intention of planting idols etc in it have

constructed a Kothri in an illegal way, within the

compound of the Masjid.......Bairagiyan got the

Chabootra constructed overnight. Because of this

construction, there occurred so much rioting in the local

populace. Now a small Kothri has been constructed. ….... it

is requested that before the riot is created by Bairagis this

Kothri may kindly be dismantled and the Masjid may be

protected from the fury of Bairagis.” (E.T.C.)

1979. Exhibit 30 (Suit-1) (Register 5 page 107-116-C) is a

copy of an application of 1877 seeking execution of the order

dated 7th November 1873 for removal of the idol, i.e., Charan

Paduka said to have been created in the disputed building. A

perusal of the said document shows that despite the order having

been passed on 7th November 1873 the same continued to exist

and was not removed. In para 6 it says:

2065

ای گگگی یگگ ا ی تگگک و مگگورتی مطگگابق حکگگم حضگگور ن ۔یعنگگی اب ٹھ ں ہ ہ ھ

ہے….....چنانچ اندر احاط مذکور ک جو چول بنایا اور رسوی کرتا ہے ہ ے ہ ہ

ا واسگگط پگگوج کگگ ا چول و ا فقگگط ایگگک چ وا و ی ن ل کب ےک ی امر پ ہ ے ہ ٹ ھ ں ہ ہ ہ ھ ے ہ ہ ہ

ی اسن واج کر لیا ا اسکو ب ہے۔لءق ت ہے ے ھ ۔ ھ^^;kuh vHkh rd og ewjr eqrkfcd+ gqde gqtwj ugha mBkbZ xbZ --------pqukaps

vUnj vgkrk et+dwj ds pwygk cukrk gS vkSj jlksbZ djrk gS fd ;g

vEj igys dHkh u gqvk ogka Q+d+r ,d NksVk lk pwygk okLrs iwtk ds

lkfcd+ esa Fkk ml dks Hkh ml us olhv dj fy;k gSA^^

"That is to say that as per orders the idol has not yet been

removed. ….... So he has made a Chulha within the said

compound which has never been done before. There was a

small Chulah for puja which he has got extended." (E.T.C.)

1980. Besides it also show that in 1877 there also exist a

Chulha in the aforesaid premises, complaint whereof was also

made.

1981. Exhibit 15 Suit 1 (Register 5 Page 41-43) : It is a

copy of the report dated Nil of Deputy Commissioner Faizabad

submitted pursuant to the Commissioner Faizabad order dated

14th May, 1877 passed in Misc. Appeal No.56, Mohd. Asghar

Vs. Khem Dass. This report appears to have been called by the

Commissioner in respect to a complaint made against raising of

a doorway in the northern wall of the disputed building. The

justification thereof was to provide a separate room on fair day

to visitors to the Janam Asthan. The document being old there

appears to be certain mistakes may be on account of legibility. It

reads as under:

“A doorway has recently been opened in the wall of

the Janum-Ashtan not at all in Baber's mosque, but in the

wall which infront is divided from the mosque by a railing.

This opening was necessary to give a separate route on fair

days to visitors to the Janum-Asthan. There was one

2066

opening only, so the cruch (sic:rush) was very great and

life was endangered. I marked out the spot for the opening

myself so there is no need to depute any Europe officer.

This petition is merely an attempt to annoy the Hindu by

making it dependent on the pleasure of the mosque people

to open or close the 2nd door in which the Mohammedans

can have no interest.

2. No objection was made to the opening of this second

door.

3. On the 10th November 1873 Baldeo Das was ordered

in writing by the Deputy Commissioner to remove an

image place on the janam-Asthan platform. A report was

made by someone (probably a police officer) that he had

gone to the house of Baldeo dass and found that the latter

had gone to Gonda. The order was explained to Gyandas

and other priests who said could not carry out the order.

The order passed on this (15) was that if the other party

(i.e. the complainant) would name person on whom an

order of removal could be served-such should be served.

(c) There apparently the matter rested. There is no later

on the file.”

1982. Pursuant to this report, the Commissioner decided the

appeal on 13th December, 1877, rejected the same. The copy of

the said order is Exhibit 16 (Suit-1) (Page 45 Register 5) and it

reads as under:

“As the door in question was opened by the Deputy

Commissioner in the interests of the public safety I decline

to interfere. Appeal dismissed.”

1983. Exhibit 34 (Suit-1) (Register 5 page 131) is a copy of

the order dated 12.01.1884 passed by Assistant Commissioner,

2067

Faizabad. It says as under:

“........ The outer door will be left open. No lock

will be allowed upon it. It is absolutely essential to

observe the strictest neutrality and maintain the status

quo.”

1984. This shows that in order to prevent any obstruction to

anyone from entering the disputed premises he directed for not

keeping lock on the doors and left the same open.

1985. Exhibit 17 (Suit-1)(Page 47-53 Register 5) is a copy

of a judgment dated 18th June, 1883 passed by Sri Hari Kishan,

Sub-Judge, Faizabad in Suit No.1374/943 of 1883 dismissing

the claim of Syed Mohd. Asghar filed against Raghubar Dass

claiming rent for user of Chabutara and Takht which admits the

possession of Raghubar Das but failed to sustain his claim for

rent.

1986. The aforesaid documents disprove the claim of

Muslims. It appears that Mohd. Asghar in Suit No. 1374/943 of

1883 produced a witness namely Ganga Prasad, Qanungo, who

made some statement in favour of Mohd. Asghar but the same

was disbelieved by the Sub Judge. He also severely castigated

the conduct of the said Qanungo, an official of the Government,

making statement in favour of a private party in a private

dispute which was not supported by any documentary evidence

though the nature of the dispute warranted some documentary

evidence.

1987. Exhibit 18 (Suit-1)(Page 55-57 Register 5) is an

application dated 2nd November, 1883 of Mohd. Asghar showing

himself as Mutawalli and Khatib Masjid Babari situated at Oudh

complaining that he is entitled to get the wall of the mosque

white-washed but is being obstructed by Raghubar Das though

2068

he has right only to the extent of Chabutara and Rasoi but the

wall and the gate etc. is part of the mosque and the complainant

is entitled to get it white-washed. The order passed on the said

application is Exhibit 27 (Suit-1) (Page 95-97 Register 5). The

Assistant Commissioner Faizabad passed the following order

dated 22nd January, 1884:

ہوا پیش فریقین فرد می مقدمہ یاج پگگ ٹفریقین کو حکگگم صگگاحب ڈ

مایش کی گی ک اندورنی وبر داس کو ف ہکمیشنر س اطلع دی گی اور رگ ھ ھ ے

ونی احگاط و درواز مسگگجد کگگی مرمگگت وغیگگر نگ کریگگ اور محمگد ںب بیر ہ ہ ہ ہ ہ ہ ا دیا گیا کگگ بیرونگگی درواز کفگگل نگگ ہاصغر کو سمج ہ ہ ایتھ ہلگایگگا جگگاو یگگ ن ہ ے

ا جاو اور کوءی دست امد قدیم بحال رک ےضروری ک عمل در ھ ہ انگگدازیہے

ے۔و مداخلت ن کی جاو ہوا کی ہحکم

و المرقوم ذا داخل دفتر ہکاغذات ھ ^^vkt eqdnek cgkftjh QjhdSu is'k gqvk QjhdSu dsk gqDe lkgc

fMIVh dfe'uj ls bfRryk nh xbZ vkSj j?kqcj nkl dks Qgekb'k dh xbZ

fd vUn#uh o cS#uh vgkrk o njoktk elftn dh ejeer oxSjg u

djsa vkSj eqgEen vlxj dks le>k fn;k x;k fd cS#uh njoktk dqQ~y

u yxk;k tkoas ;g fugk;r t#jh gS fd vey njken dnhe cgkr j[kk

tkoas vkSj dksbZ nLr vUnkth o enk[kyr u dh tkos A

gqDe gqvk fd

dkxtkr gktk nkf[ky nQ~rj gks vYejdwe^^

(Hindi Transliteration)

Today the case was put up in the presence of the

parties, who have been informed of the orders of the

Deputy Commissioner and Raghubar Das has been

restricted not to repair the inner or outer portion of the

Masjid and Mohammad Asghar has been admonished that

the outer gate of the Masjid should not be locked. This was

important that long tradition should be maintained and no

intervention should be done in it. Ordered these papers

2069

should be consigned to office." (E.T.C.)

1988. Exhibit A-25 (Suit-1) (Register 7, page 277-281) is a

copy of a map prepared and submitted on 06.12.1885 by Sri

Gopal Sahai Amin, Court's Commissioner appointed by Sub-

Judge, Faizabad in Suit-1885 of the disputed place. It mentions

in the outer courtyard, existence of Sita Rasoi and Ram

Chabutara and this has continued to exist in the outer courtyard

even in 1950 as is evident from the map prepared by Sri Shiv

Shankar Lal Pleader, Commissioner appointed by Civil Judge,

Faizabad in Suit-1 submitted on 25.05.1950.

1989. So far as the existence of Sita Rasoi which was on the

north west side in the outer courtyard is concerned, nothing has

come on record to show as to when it was actually constructed.

On the contrary, the record shows that it existed prior to 1885.

Its actual time and period when it was constructed is

unascertainable. It is beyond comprehension that Mir Baqi or

anyone else, while constructing a mosque at the disputed place

could have spared some Hindu structure(s) to continue, may be

smaller in size, in the precinct of mosque so as to be worshipped

by Hindus inside the premises of mosque. We put this question

to Sri Jilani also and he frankly stated that no Muslim would

allow idol worship in the precinct of a mosque.

1990. Considering the evidentiary admissions in Avadh

Kishore Dass Vs. Ram Gopal (supra) the Court said:

“It is true that evidentiary admissions are not conclusive

proof of the facts admitted and may be explained or shown

to be wrong, but they do raise an estoppel and shift the

burden of proof on to the person making them or his

representative-in-interest. Unless shown or explained to be

wrong, they are an efficacious proof of the facts admitted.”

2070

(para 23)

1991. In Sitaramacharya Vs. Gururajacharya, 1997(2)

SCC 548 the Court said:

“Under Section 18 of the Evidence Act the admission

made by the party would be relevant evidence. Section 31

provides that "admissions are not conclusive proof of the

matters admitted but they may operate as estoppel under

the provisions hereinafter contained". In view of the

admissions referred to earlier they appear to be

unequivocal and the finding recorded by the appellate

Court is cryptic. On the other hand, the trial Court has

gone into the evidence on issues in extenso and considered

the evidence and the appellate Court has not adverted to

any of those valid and relevant consideration made by the

trial Court. The High Court has dismissed the second

appeal holding that they are findings of fact recorded by

the appellate Court on appreciation of evidence. We think

that the view taken by the High Court is not correct in law.

The admissions in the written statement in the earlier

proceedings, though not conclusive, in the absence of any

reasonable and acceptable explanation, it is a telling

evidence heavily loaded against the respondent.” (para 6)

1992. In United India Insurance Co. Ltd. and another Vs.

Samir Chandra Chaudhary, 2005(5) SCC 784 the Court said:

“Admission is the best piece of evidence against the

persons making admission. As was observed by this Court

in Avadh Kishore Das v. Ram Gopal and Ors., AIR (1979)

SC 861 in the backdrop of Section 31 of Indian Evidence

Act, 1872 (in short the `Evidence Act') it is true that

evidentiary admissions are not conclusive proof of the facts

2071

admitted and may be explained or shown to be wrong; but

they do raise an estoppel and shift the burden of proof

placing it on the person making the admission or his

representative-in-interest. Unless shown or explained to be

wrong, they are an efficacious proof of the facts admitted.

As observed by Phipson in his Law of Evidence (1963

Edition, Para 678) as the weight of an admission depends

on the circumstances under which it was made, these

circumstances may always be proved to impeach or

enhance its credibility. The effect of admission is that it

shifts the onus on the person admitting the fact on the

principle that what a party himself admits to be true may

reasonably be presumed to be so, and until the presumption

is rebutted, the fact admitted must be taken to be

established. An admission is the best evidence that an

opposing party can rely upon, and though not conclusive is

decisive of matter, unless successfully withdrawn or proved

erroneous. (See Narayan Bhagwantrao Gosavi Balajiwale

v. Gopal Vinayak Gosavi and Ors., AIR (1960) SC 100).”

(para 11)

1993. In Mahendra Manilal Nanavati Vs. Sushila

Mahendra Nanavati, AIR 1965 SC 364 the Court said:

“The provisions of the Evidence Act and the Code of Civil

Procedure provide for Courts accepting the admissions

made by parties and requiring no further proof in support

of the facts admitted.” (para 22)

“23. Section 58 of the Evidence Act inter alia provides

that no fact need be proved in any proceeding which the

parties thereto or their agents agree to admit at the hearing

or which by any rule of pleading in force at the time they

2072

are deemed to have admitted by their pleading. Rule 5 of

O. VIII, C.P.C., provides that every allegation of fact in the

plaint, if not denied specifically or by necessary

implication or stated to be not admitted in the pleadings of

the defendant, shall be taken to be admitted except as

against a person under disability.”

“24. Both these provisions, however, vest discretion in the

Court to require any fact so admitted to be proved

otherwise than by such admission. Rule 6 of O. XII of the

Code allows a party to apply to the Court at any stage of a

suit for such judgment or order as upon the admissions of

fact made either on the pleadings or otherwise he may be

entitled to, and empowers the Court to make such order or

give such judgment on the application as it may think just.

There is therefore no good reason for the view that the

Court cannot act upon the admissions of the parties in

proceedings under the Act.”

“25. Section 23 of the Act requires the Court to be

satisfied on certain matters before it is to pass a decree.

The satisfaction of the Court is to be on the matter on

record as it is on that matter that it has to conclude

whether a certain fact has been proved or not. The

satisfaction can be based on the admissions of the parties.

It can be based on the evidence, oral or documentary, led

in the case. The evidence may be direct or circumstantial.”

“29. . . it is quite competent for the Court to arrive at the

necessary satisfaction even on the basis of the admissions

of the parties alone. Admissions are to be ignored on

grounds of prudence only when the Court, in the

circumstances of a case, is of opinion that the

2073

admissions of the parties may be collusive. If there be

no ground for such a view, it would be proper for the

Court to act on those admissions without forcing the

parties to lead other evidence to establish the facts

admitted, unless of course the admissions are

contradicted by the facts proved or a doubt is created by

the proved facts as regards the correctness of the facts

admitted.”

1994. In State of Bihar and others Vs. Sri Radha Krishna

Singh and others, AIR 1983 SC 684 various aspects of the

Evidence Act came to be considered. With respect to genealogy

the Court said:

“18. . . . . the plaint genealogy is the very fabric and

foundation of the edifice on which is built the plaintiff's

case. This is the starting point of the case of the plaintiff

which has been hotly contested by the appellant. In such

cases, as there is a tendency on the part of an interested

person or a party in order to grab, establish or prove an

alleged claim, to concoct, fabricate or procure false

genealogy to suit their ends, the courts in relying on the

genealogy put forward must guard themselves against

falling into the trap laid by a series of documents or a

labyrinth of seemingly old genealogies to support their

rival claims.”

“19. The principles governing such cases may be

summarized thus:

(1) Genealogies admitted or proved to be old and relied on

in previous cases are doubtless relevant and in some cases

may even be conclusive of the facts proved but there are

several considerations which must be kept in mind by the

2074

courts before accepting or relying on the genealogies:

(a) Source of the genealogy and its dependability.

(b) Admissibility of the genealogy under the Evidence Act

(c) A proper use of the said genealogies in decisions or

judgments on which reliance is placed.

(d) Age of genealogies.

(e) Litigations where such genealogies have been accepted

or rejected.

(2) On the question of admissibility the following tests must

be adopted:

(a) The genealogies of the families concerned must fall

within the four-corners of s.32 (5) or s. 13 of the Evidence

Act.

(b) They must not be hit by the doctrine of post litem

motam.

(c) The genealogies or the claim cannot be proved by

recitals, depositions or facts narrated in the judgment

which have been held by a long course of decisions to be

inadmissible.

(d) Where genealogy is proved by oral evidence, the said

evidence must clearly show special means of knowledge

disclosing the exact source, time and the circumstances

under which the knowledge is acquired, and this must be

clearly and conclusively proved,.”

“24. It is well settled that when a case of a party is based

on a genealogy consisting of links, it is incumbent on the

party to prove every link thereof and even if one link is

found to be missing then in the eye of law the genealogy

cannot be said to have been fully proved.”

1995. With respect to Section 5 of the Evidence Act the

2075

Court said:

“32. . . . . Ex.J. being an entry in a Register made by a

public officer in the discharge of his duties squarely falls

within the four corners of s. 35 of the Evidence Act and is,

therefore, doubtless admissible. In this connection, the

learned Judge observed thus:

" . . . . There can thus be no doubt that it is admissible

under section 35 of the Evidence Act."

33. . . . . . We agree with the unanimous view of the High

Court that Ex. J is admissible. . . . . . . all the conditions

of s. 35 of the Evidence Act are fully complied with and

fulfilled. . . . . It is a different matter that even though a

document may be admissible in evidence its probative

value may be almost zero and this is the main aspect of the

case which we propose to highlight when we deal with the

legal value of this document.”

“35. In our opinion, Ex. J. squarely falls within the four

corners of s. 35 of the Evidence Act which requires the

following conditions to be fulfilled before a document can

be admissible under this section.

(1) the document must be in the nature of an entry

in any public or other official book, register or

record,

(2) it must state a fact in issue or a relevant fact,

(3) the entry must be made by a public servant in the

discharge of his official duties or in performance of

his duties especially enjoined by the law of the

country in which the relevant entry is kept.”

“36. . . . . . he was entrusted with the task of and enjoined

the duty of ascertaining the possession of various landlords

2076

for the purpose of taking suitable steps in the matter. .

. . . The question as to whether the relevant fact is proved

or not is quite a different matter which has nothing to do

with the admissibility of the document but which assumes

importance only when we consider the probative value of

a particular document. . . . . . Thus, all the aforesaid

conditions of s. 35 are fully complied with in this case.”

“38. In P.C. Purushothama Reddiar v. S. Perumal,

(1972) 2 SCR 646 this Court while considering the effect

of s. 35 of the Evidence Act observed as follows:-

". . . . . The first part of s. 35 of the Evidence Act

says that an entry in any public record stating a fact in

issue or relevant fact and made by a public servant in the

discharge of his official duty is relevant evidence. Quite

clearly the reports in question were made by public

servants in discharge of their official duty."

1996. With respect to admissibility of document and

probative value the Court in State of Bihar and others Vs. Sri

Radha Krishna Singh (supra) said:

“40. We may not be understood, while holding that Ex.J is

admissible, to mean that all its recitals are correct or that

it has very great probative value merely because It happens

to be an ancient document. Admissibility of a document is

one thing and its probative value quite another—these two

aspects cannot be combined. A document may be

admissible and yet may not carry any conviction and

weight or its probative value may be nil.”

“47. We would like to mention here that even if a

document may be admissible or an ancient one, it cannot

carry the same weight or probative value as a document

2077

which is prepared either under a statute, ordinance or an

Act which requires certain conditions to be fulfilled. This

was the case in both Ghulam Rasul Khan's (AIR 1925 PC

170) and Shyam Pratap Singh's cases (AIR 1946 PC 103)

(supra).”

1997. In various gazetteers also this has been noticed. The

entry of Hindu public before December, 1949 inside the

building premises has not been disputed even by the witnesses

of plaintiffs (Suit-4).

1998. Considering as to how a fact can be said to have been

proved in T. Shankar Prasad Vs. State of A.P., 2004(3) SCC

753 the Court said that direct evidence is one of the modes

through which a fact can be proved but that is not the only mode

envisaged in the Evidence Act. In para 11, 12, 13 and 14 the

Court said:

“11. Proof of the fact depends upon the degree of

probability of its having existed. The standard required for

reaching the supposition is that of a prudent man acting in

any important matter concerning him. Fletcher Moulton

L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd.

(1911 (1) KB 988) observed as follows:

"Proof does not mean proof to rigid

mathematical demonstration, because that is

impossible; it must mean such evidence as would

induce a reasonable man to come to a particular

conclusion".

12. The said observation has stood the test of time and

can now be followed as the standard of proof. In reaching

the conclusion the Court can use the process of inferences

to be drawn from facts produced or proved. Such

2078

inferences are akin to presumptions in law. Law gives

absolute discretion to the Court to presume the existence of

any fact which it thinks likely to have happened. In that

process the Court may have regard to common course of

natural events, human conduct, public or private business

vis-`-vis the facts of the particular case. The discretion is

clearly envisaged in Section 114 of the Evidence Act.

13. Presumption is an inference of a certain fact drawn

from other proved facts. While inferring the existence of a

fact from another, the Court is only applying a process of

intelligent reasoning which the mind of a prudent man

would do under similar circumstances. Presumption is not

the final conclusion to be drawn from other facts. But it

could as well be final if it remains undisturbed later.

Presumption in law of evidence is a rule indicating the

stage of shifting the burden of proof. From a certain fact or

facts the Court can draw an inference and that would

remain until such inference is either disproved or dispelled.

14. For the purpose of reaching one conclusion the

Court can rely on a factual presumption. Unless the

presumption is disproved or dispelled or rebutted the Court

can treat the presumption as tantamounting to proof.

However, as a caution of prudence we have to observe that

it may be unsafe to use that presumption to draw yet

another discretionary presumption unless there is a

statutory compulsion. This Court has indicated so in

Suresh Budharmal Kalani v. State of Maharashtra (1998

(7) SCC 337):

"A presumption can be drawn only from

facts—and not from other presumptions—by a

2079

process of probable and logical reasoning".

1999. Though plaintiffs (Suit-3) have pleaded that the idols

in question were already there under the central dome of the

disputed building inside the inner courtyard for time

immemorial and nothing happened in the night of 22nd/23rd

December, 1949 but the plaintiffs (Suit-4 and 5) have

categorically pleaded that the idol(s) were placed in the disputed

building in the night of 22nd/23rd December, 1949. We

propose to find out whether plaintiffs (Suit-3) have discharged

burden of showing idols under the central dome prior to

22nd/23rd December, 1949.

2000. Sri Deoki Nandan Agarwal who earlier represented the

plaintiffs 1 and 2 (Suit-5) as their next friend made a statement

under Order X Rule 2 C.P.C. on 30.04.1992 and said:

“In the early hours of December 23, 1949, the idol of

Bhagwan Sri Ram Lala, which was already on Ram

Chabutra was transferred to the place where He presently

sits, that is, under the central dome of the disputed

building. I was not personally present at that time at the

place. This information was conveyed to me by Paramhans

Ram Chandra Das of Digamber Akhara. This transfer of

the idol was done by Paramhans Ram Chandra Das and

Baba Abhi Ram Das and certain other persons whose

names I do not remember at the moment....”

2001. DW 2/1-2 has also said on page 12, 42 and 128:

^^lu~ 1949 esa fookfnr ifjlj dk chp okyk Hkkx vFkkZr~ xHkZx`g d+qdZ

gqvk FkkA xHkZx`g ls rkRi;Z rhu xqEcn okys Hkou ds uhps dk Hkkx rFkk

mlds lkeus dh lgu ,oa lh[kps okyh nhokj rd dk Hkkx FkkA

d +qd Z ' k qn k lEif Rr d s i wjc rjQ + jketUeHk wfe dk Hk.Mkj

rFk k jke pc wrj k Fk kA mRrj rjQ + pkj pj.k fpUg rFk k

pk Sdk c syu okyk LFk ku Fk kA ^* ¼ist 12½

2080

“In 1949 the central portion of the disputed

premises, i.e, sanctum (Garbh Grih) was attached. Garbh

Grih meant the portion below the three domed building and

the appurtenant land in front thereof upto the grill wall.

Towards east of the attached property, the store of Ram

Janmbhumi and Ram Chabutara existed. Towards

north, the places of four-footprints and Chauka-Belan

(Utensils used in Indian kitchen) existed.” (ETC)

^^tc rd ckcjh efLtn /oLr ugha gqbZ Fkh] rc rd mlh Hkou ls

yxk gqvk 17 fQV x 21 fQV yEck&pkSM+k jkepcwrjk ekStwn FkkA

fookfnr <kWaps ds lkFk&lkFk og jkepcwrjk Hkh /oLr gks x;kA** ¼ist 42½

“Till the Babri mosque was not demolished, there

was an appurtenant 17 feet x 21 feet Ramchabutara. Along

with the disputed structure, the Ramchabutara was also

demolished.” (E.T.C)

^^eSaus ;g fy[kk gS fd 1859 bZ0 essa okftn vyh 'kkg ds le; esa

jkepcwrjk o lhrk jlksbZ ds u"V gksus ds iz;kl gksrs jgs] ;|fi dksbZ

lQyrk ugha feyhA bl va'k dks eSaus i<+us ds vk/kkj ij fy[kk gSA ;g

va'k eSaus fdl fdrkc esa i<+k Fkk] ;g eq>s ;kn ugha gSA eq>s ;g ;kn

ugha gS fd uokc okftn vyh 'kkg dk dk;Zdky 1858 bZ0 esa lekIr gks

x;k Fkk ;k ughaA eq>s u rks bl ckr dh tkudkjh gS vkSj u bl laca/k

esa ;kn gS fd 1859 bZ0 esa okftn vyh 'kkg uokc Fks ;k ughaA ;g dguk

xyr gS fd 1859 bZ0 esa jkepcwrjk o lhrk jlksbZ ds u"V djus ds

iz;kl ls lacaf/kr dksbZ ?kVuk ugha gqbZA** ¼ist 128½

“I have written that in 1859, during the time of Wajid

Ali Shah, attempts had been made to vandalise Ram

Chabutra and Sita Rasoi but to no avail. I have written this

portion on the basis of my study. I do not remember in

which book I had read this portion. I do not remember

whether the reign of Wajid Ali Shah had come to an end or

not in 1858. I neither know nor remember whether Wajid

2081

Ali Shah was Nawab or not in 1859. It is wrong to say that

no incident occurred in 1859 which involved attempts to

damage Ram Chabutra and Sita Rasoi.” (E.T.C)

2002. The State authorities have filed their written statement

in Suit-1 and 3 wherein they have also taken this stand that the

idols were kept under the central dome of the disputed building

in the night of 22nd/23rd December, 1949. Though this fact has

been seriously disputed by plaintiffs (Suit-3) and a large number

of witnesses have been produced by them to demolish this fact

but we find a self contradiction in those statements and for

reasons more than one as we shall discuss now, the statements

of most of such witnesses produced on behalf of plaintiff (Suit-

3) are uncreditworthy.

2003. Plaintiffs (Suit-3) have examined twenty witnesses i.e.

D.W.-3/1 to 3/20. Almost all the witnesses have filed their

affidavits under Order XVIII Rule 4 C.P.C., as permitted by this

Court, to depose their statement in-chief and all these affidavits

are virtually similar, containing prototype statements with minor

corrections or variations here and there.

2004. The basic submission is that the building has all along

been worshipped by Hindus, managed by the priest and agents

of Nirmohi Akhara and idols were already there under the

central dome of the disputed building much before 1949. Hindus

were regularly worshipping by entering into the disputed

building, i.e., inner courtyard prior to 1949. They have also

denied any incident of 22/23rd December, 1949 with respect to

placement of the idols inside the building under the central

dome since it was already there.

2005. For the purpose of Suit-3, the disputed site means only

"the inner courtyard". The aforesaid Suit-3 has not been filed

2082

with respect to any part of the premises constitute part of the

outer courtyard. Therefore, qua Suit-3, the "disputed site" or

"disputed area" or "disputed building" means only the "inner

courtyard" and the building existed thereat. As per the plaint

statement in Suit-3, the temple of Lord Rama existed at the

disputed site since time immemorial. They denied any battle of

Babar with the then ruler at Ayodhya, construction by Babar or

his agent in 1528 AD, riot or dispute of 1934 as also the alleged

incident of placement of idol in the night of 22/23 December,

1949 in the disputed building. It is in support of these

averments, twenty witnesses have been produced on behalf of

the plaintiff (Suit-3). In fact, in the plaint, nothing has been said

about 1528 or 1934 except that no Muslim has ever allowed or

admitted to enter atleast ever since the year 1934, as is evident

from para 5 thereof but in replication, these incidents have been

disputed.

2006. The respondents no.6 to 8 in their written statement

gave the date of construction of the disputed building as mosque

in 1528 AD by Babar, its maintenance through the grant

received from the then Emperor and thereafter by State

authorities etc. and continued Namaz till 16th December, 1949.

In reply thereto, the replication filed by the plaintiff states that

no property was constructed by Babar as mosque but throughout

it has been a temple of Lord Rama and that the plaintiffs are in

possession of the said temple since time immemorial from the

date of the construction of the temple.

2007. Clarifying their stand, Sri Sarab Jeet Lal Verma,

Advocate appearing on behalf of the plaintiffs (Suit-3) before

the Civil Judge made a statement on 17th May, 1963 under Order

X Rule 2 C.P.C. that the property in suit is believed to be the

2083

birth place of Lord Ram Chandra and so there is a temple of

Lord Ram Chandra on it. The management and control of this

temple is that of plaintiffs and property is not dedicated to the

idol though the temple is made on the land which is the birth

place of lord Ram. It is owned by the plaintiffs and the temple

was made by the plaintiffs. He further clarified that the suit is

confined to the property shown by letters E F G H I J K L in the

map appended to the plaint (Suit-3).

2008. All the witnesses of plaintiff (Suit-3) have been cross-

examined at very great length to contradict them and to extract

truth from the. In T. Shankar Prasad Vs. State of A.P. (supra)

in respect to the testimony of a witness cross-examined and

contradicted with the leave of the Court by the party calling him

with reference to Section 154 of the Evidence Act the Court

said:

“It is for the judge of fact to consider in each case whether

as a result of such cross-examination and contradiction,

the witness stands thoroughly discredited or can still be

believed in regard to a party of his testimony. If the judge

finds that in the process the credit of the witness has not

been completely shaken, he may after reading and

considering the evidence of the said witness, accept in the

light of the other evidence on record that part of his

testimony which he found to be creditworthy and act upon

it.” (para 24)

2009. It is now in the context of the above stand of the

plaintiffs (Suit-3) we would examine the statements made by

their witnesses.

2010. DW 3/1 Mahant Bhaskar Das, Sarpanch Shri

Manch Ramanandiya Nirmohi Akhara, Ramghat, Ayodhya

2084

besides other, firstly said in para 9 of the affidavit that Ram

Janam Bhumi and all the surrounding, small and big temples

and religious place like Chathi Poojan Sthal, Ram Chabutara

Mandir Sthan, Shashthamukhi Shankar Bhagwan, Ganesh Ji,

Seeta Koop Mandir, Gufa Mandir, Sumitra Mandir, Lomash

Samadhi etc. are all the property of Nirmohi Akhara. It is in

their possession and management for last several hundred years

prior to the attachment and they have continued to look after the

same till acquisition.

2011. Then in para 10 of the affidavit he has specifically said

that from 1946 to 1949, in the internal part of the main temple,

Nirmohi Akhara through its Pujaries have continued worship

including other religious places like Ram Chabutara, Shashtha

Mukhi Shankar Bhagwan Sthal and Chathi Poojan Sthal and that

no Namaz has been offered in the disputed site from 1946 to

1949. In para 81 he said that Bhagwan Ram Lala is inside the

disputed building prior to 1934, and, since 1934, Nirmohi

Akhara is continuously having its possession. It, however,

admits in para 48 that there was police surveillance at the

eastern gate of Mandir Ram Janam Bhoomi prior to 22/23

December, 1949 and Police Chauki was also established in the

north-east corner of temple. In para 56, he has admitted that

Raghubar Das was the Mahant of Nirmohi Akhara prior to 1885

and had filed a case in respect to Ram Chabutara in his own

name and not on behalf of Nirmohi Akhara. In para 62,

however, he has denied about shifting of idol from Ram

Chabutara on 22/23 December, 1949.

2012. Having said so, he has made very interesting

statements in cross examination. Firstly he has admitted that a

mosque was constructed in 1528 AD after demolition of Sri

2085

Ram Janam Bhoomi temple in page 47:

^^iz0&ckcjh efLtn dk fuekZ.k dc gqvk Fkk\

m0& lu~ 1528 e s a Jhjke tUeHk wfe e afnj rk sM + djd s efLtn

cukb Z xb Z Fk hA ^ ^ ¼ist 47½

"Question:- When was Babri mosque built?

Answer:- The mosque was built in the year 1528 by

demolishing Sri Ramjanmbhumi temple. (ETC)

^^;g >xM+k 'kq# ls pyrk Fkk tc ls lu~ 1528 ls ogka fookfnr Hkou

cuk ;g ckrsa eSaus vius iwoZtksa ls lquh gSa] dgha i<+h ugha gSaA ;g >xM+k 76

ckj gqvk gSA ;g >xM+k ckcj ds t+ekus ls vaxzstksa ds t+ekus rd gqvk gS

vkSj vk f[kjh ckj ;g >xM +k lu ~ 1934 e sa g qvk Fk kA ^ ^

"This conflict used to take place since beginning, when the

disputed structure was built over there in the year 1528. I

have heard this from my ancestors, but have not read it

anywhere. This conflict broke out on 76 occasions. This

conflict has continued from the time of Babar to the British

period and it last broke out in the year 1934." (E.T.C.)

^^fodzekfnR; }kjk cuok;s x;s Hkouksa dks <+kbZ gtkj o"kZ pwWafd gks x;s gSa] bl

dkj.k os Lo; a fxj x; s Fk s vkSj tUeHkwfe eafnj lu~ 1528 esa fxjok;k

x;k FkkA tk s H kou lu ~ 1528 e sa rk sM +o k;k x;k Fk k ] og e wy #i

l s fod zek fnR; }kjk cuok;k x;k Fk k vk S j chp&chp e s a mldk

th.k k sZ) kj gk sr k jgk Fk kA

;g dguk xyr gS fd lu~ 1528 esa tc fookfnr Hkou cuok;k

x;k] rc fdlh eafnj dks rksM+dj ugha cuok;k x;k FkkA ;g Hkh dguk

xyr gS fd ml le; ogka dksbZ eafnj ugha FkkA eSaus lu~ 1528 esa eafnj

rksM+dj fookfnr Hkou cuokus okyh ckr o fodzekfnR; }kjk tUeHkwfe eafnj

cuok;s tkus dh ckr i wo Ztk s a l s l quh Fk h ] dgh a i< +h ugh a Fk hA**

¼ist 119½

"Since the buildings built by Vikramaditya were 2500

years old, they collapsed on their own and the Janmbhumi

temple was demolished in the year 1528. The building which

2086

was demolished in the year 1528, was originally built by

Vikramaditya with intervening renovations from time to

time.

It is wrong to say that when the disputed structure was

built in the year 1528, it had not been built by demolishing

any temple. It is also wrong to say that no temple existed over

there at that time. The factum of building of disputed

structure in the year 1528 by demolishing a temple, and the

building of Janmbhumi temple by Vikramaditya, were heard

by me from my ancestors, and I have not read it anywhere."

(E.T.C)

2013. This statement of the witness is directly contrary to the

pleading and the basic case of the plaintiffs (Suit-3).

2014. Moreover having said so that is about construction of

mosque nowhere he has said as to when the above mosque

ceased to be a mosque and when worship by Hindus started in

the disputed building. He however has confined the period of

worship by Hindus prior to 1934. On page 47, 63, 98, 108 and

109, he has said:

^^iz0& mijksDr efLtn dc rd dk;e jgh Fkh\

m0& lu ~ 1934 d s igy s l s ogk a ij i wtk&ikB gk sr k pyk

vk jgk g SA * * ¼ist 47½

Question:- Till when did the aforesaid mosque exist?

Answer:- Prayer-worship has been continuing over there

from before the year 1934." (E.T.C)

^^fueksZgh v[kkM+k us igyh ckj fook fnr Hkou d s fy, i qtkjh

lu ~ 1934 l s igy s fu; qDr fd;k Fk k ijUrq ;g ;kn ugha gS fd

lu~ 1934 ls fdrus igys fookfnr Hkou ds fy, fueksZgh v[kkM+s us iqtkjh

fu;qDr fd;k FkkA** ¼ist 63½

"The first priest for the disputed structure was

appointed before the year 1934 by the Nirmohi Akhara,

2087

but (I) do not remember as to how much before the year

1934, was the priest appointed by the Nirmohi Akhara for

the disputed structure." (E.T.C)

^^lu ~ 1934 d s igy s l s ogk a e wfr Z j[k h Fk h ] ftls v[kkM+s ds

fdlh egUr us izfrf"Br djk;k FkkA

ogka ij jkeyyk th dh ewfrZ] y{e.k th dh ewfrZ] guqeku th dh

ewfrZ] lkfyx jke Hkxoku vkfn dh ewfrZ;ka j[kh FkhA ;s lc e wfr Z;k a

lu ~ 1934 d s igy s l s fook fnr Hkou d s vUnj j[k h Fk hA

fookfnr Hkou ds e/; okys xqacn ds uhps lhf<+;ksa ij ;s ewfrZ;ka j[kh gqbZ

FkhA** ¼ist 98½

"Idol existed over there from before the year 1934,

which had been installed by some Mahant of the Akhara.

The idols of Ramlala, Laxman Ji, Hanuman Ji and

Lord Saligram existed over there. All these idols were

inside the disputed structure from before the year 1934.

These idols existed at the stairs beneath the middle dome of

the disputed structure." (E.T.C)

^^fookfnr Hkou esa e wfr Z lu ~ 1934 d s igy s j[k h xb Z Fk h ]

ijUrq fdl lu~ esa j[kh xbZ Fkh vFkok fdlus j[kh Fkh ;g eq>s Kku ugha

gSA** ¼ist 108½

"The idol had been installed in the disputed

structure prior to the year 1934, but I have no knowledge

as to when was it installed or by whom." (E.T.C)

^^eSaus ;g ckr viu s i wo Ztk s a l s l quh g S fd lu~ 1934 ds

igys ogkWa ewfrZ j[kh gqbZ FkhA eSa ;g Hkh ugh a crk ikÅW ax k fd rhu

x q Ecn oky s fook fnr Hkou d s fuek Z . k ;kuh lu ~ 1528 d s

fdru s le; ckn fook fnr Hkou e sa e wfr Z j[k h xb Z Fk hA ^ ^

¼ist 109½

"I had heard it from my ancestors that the idols

existed over there from before the year 1934. I will also

not be able to tell how many years after the construction

2088

of the three domed disputed structure i.e. after the year

1528, were the idols installed in the disputed structure."

(E.T.C)

2015. So far as his own visit to the disputed site, he claimed

it since 1946, at page 46:

^^eSa fookfnr LFky ij lu~ 1946 ls tkrk jgk gwWa vkSj ogka ij eSa

jgrk Hkh FkkA eSa ogka ij eafnj ij iwtk&ikB djrk Fkk] cgSfl;r

iqtkjhA** ¼ist 46½

"I have been going to the disputed site from the year

1946 and I also used to stay over there. I used to carry out

prayer-worship in the temple over there as a priest."

(E.T.C)

2016. The visit of Muslims at the disputed site is also

disputed by him since 1946 at page 53 and 127:

^^lu~ 1946 esa eqlyeku yksx fookfnr Hkou ij ugha vkrs&tkrs

FksA eSaus lu~ 1946 esa fdlh eqlyeku dks fookfnr Hkou esa vkrs&tkrs

ugha ns[kkA fnlEcj lu~ 1949 rd fookfnr Hkou esa uekt ugha gqbZA**

¼ist 53½

"In the year 1946, the Muslims did not visit the

disputed structure. In the year 1946, I did not see any

Muslim visit the disputed structure. Namaz was not offered

in the disputed structure till December, 1949." (E.T.C)

^^lu~ 1946 esa tks yksx n'kZu djus vkrs Fks] og fookfnr Hkou ds

vUnj vkdj n'kZu djrs FksA lu ~ 1946 e sa lh[kpk s a okyh nhokj

d s nk su k s a njokt s n'k Zuk f F k Z;k s a d s fy, [k qy s jgr s Fk s vkSj

efUnj lqcg 8 cts ls 12 cts rd vkSj lk;a pkj cts ls ukS&lk<+s ukS

cts jkr rd [kqyk jgrk gSA** ¼ist 127½

"The people who used to come to have darshan in the

year 1946, used to have darshan from inside the disputed

structure. In the year 1946, both the gates of the grill

wall used to remain open for the devotees and the temple

2089

used to remain open between 8 am to 12 noon and 4 pm to

9/9.30 pm." (E.T.C)

2017. His statement apart the affairs of Nirmohi Akhara has

attained importance for he is Panch of Nirmohi Akhara since

1950 and presently Sarpanch and Mukhtare Aam:

^^eSa lu~ 1950 esa fueksZgh v[kkM+s dk iap gqvk Fkk vkSj egUr

j?kqukFk nkl th dk eq[rkjsvke Hkh FkkA lu ~ 1950 l s e S a cjkcj

i ap pyk vk jgk g wW aA mlds ckn mi&ljiap gqvk Fkk vkSj vkt l s

db Z lky igy s e S a mldk lji ap gk s x;k vk S j vkt Hk h e S a

fuek sZ g h v[k kM + s dk lji ap o e q[rkj sv ke g wW aA eSa fueksZgh v[kkM+s

ds egUr txUukFk nkl th dk eq[rkjsvke gwWaA** ¼ist 72½

"I became the 'Panch' of Nirmohi Akhara in the year

1950 as also the 'Mukhtar-e-aam' (power of attorney

holder) of Mahant Raghunath Das. I have regularly

continued as a 'Panch' from the year 1950. Thereafter, I

became its 'Up-Sarpanch' and today for last many years, I

am its 'Sarpanch', and even today I am 'Sarpanch' and

'Mukhtar-e-aam' of Nirmohi Akhara. I am the 'Mukhtar-

e-aam' of Nirmohi Akhara's Mahant Jagannath Das."

(E.T.C)

2018. Regarding the incident of 22/23 December, 1949, he

said at page 77/78 and 80:

^ ^22@23 fnlEcj lu ~ 1949 dh jkr dk s fook fnr

Hkou e sa dk sb Z ? kVuk ugh a g qb Z Fk hA ;fn dksbZ ;g dgrk gS fd

22@23 fnlEcj 1949 dh jkr dks fookfnr Hkou esa dksbZ ?kVuk gqbZ] rks

og xyr dgrk gSA eSa 22@23 fnlEcj lu~ 1949 dh jkr dks fookfnr

ifjlj esa gh ekStwn FkkA eSa jkf= esa lk<+s X;kjg cts lksrk gwWa vkSj lk<+s

pkj cts mB tkrk gwWa] ml jkr ;kuh 22@23 fnlEcj lu~ 1949 dh jkr

dks mlh izdkj lks;k gwWxkA ml le; ;kuh ml jkr dks eSa xqEcn ds

uhps okys LFkku ij lks;k FkkA** ¼ist 77&78½

"No incident occurred in the disputed structure in

2090

the night of 22/23 December, 1949. If somebody claims

that some incidents occurred in the disputed structure in

the night of 22/23 December, 1949, then he is stating

wrongly. In the night of 22/23 December, 1949 I was

present in the disputed premises. I go to bed at 11.30 PM

and get up at 4.30 AM. I must have slept so in that night i.e.

in the night of 22/23 December, 1949. At that time i.e. in

that night, I had slept at the place beneath the dome."

(E.T.C)

^^;fn ml fjiksVZ esa ;g fy[kk gks fd 22@23 fnlEcj lu~ 1949

dh jkr esa dqN yksxksa us efLtn esa nkf[ky gksdj efLtn ukikd fd;k]

rks ;g ckr xyr fy[kh gSA ftu jke'kdy nkl th dk uke bl

fjik sV Z e s a fy[k k g S ] ogh e sj s lkFk 22@23 fnlEcj lu ~

1949 dh jkr dk s x q Ecn oky s H kou e s a lk s; s Fk s vkSj ftu

lqn'kZu nkl th dk uke bl fjiksVZ esa fy[kk gS og ogh lqn'kZunkl th

gSa] tks ml jkr lUr fuokl esa lks;s Fks vkSj vHk;jkenklth ogha gSa] tks

22@23 fnlEcj lu~ 1949 dh jkr dFkk e.Mi esa lks;s Fks vkSj ftu

jkenklth dk uke fjiksVZ esa vk;k gS] og ml le; jkepc wrj s

d s i qtkjh Fk s vk S j ml jkr fook fnr ifjlj e s a gh lk s; s

Fk sA ** ¼ist 80½

"If it is so mentioned in that report that in the night of

22/23 December, 1949, some people had entered the

mosque and de-sanctified the mosque, then the said fact

has been mentioned wrongly. The Ramshakal Das named

in this report, had slept along-with me in the domed

structure in the night of 22/23 December, 1949 , and the

Sudarshan Das named in this report, is the same

Sudarshan Das who had slept in the saints'

accommodation in that night and Abhay Ram Das is the

same person who had slept in the 'Katha Mandap' in the

night of 22/23 December, 1949 and the Ram Das Ji named

2091

in the report, was the priest of Ramchabutara at that time

and he had slept in the disputed premises in that night."

(E.T.C)

2019. The contradictions and incorrectness in his statement

is evident from the following:

^ ^;g fl ag klu fook fnr Hkou e s a lu ~ 1950 d s igy s

l s Fk kA ;g flagklu fookfnr Hkou esa lu~ 1950 ds nl lky igys ls

FkkA ;g flagklu fookfnr Hkou esa lu~ 1950 esa Fkk ijUrq bldh dqdhZ

ugha gqbZ FkhA** ¼ist 104½

"This throne existed in the disputed structure from

before the year 1950. This throne was present in the

disputed structure, from ten years before the year 1950.

This throne was in the disputed structure in the year 1950,

but it had not been attached." (E.T.C)

^ ^lu ~ 1986 d s igy s bu fp=k s a e s a fn[k jgk fl ag klu

fook fnr LFky ij ugh a Fk kA ;g gks ldrk gS fd ;g flagklu lu~

1986 esa fookfnr Hkou dk rkyk [kqyus ds ckn ogka j[kk x;k gksA**

¼ist 147½

“Before 1986, the throne, visible in these

photographs, did not exist at the disputed site. This

throne may have been placed in the disputed building after

its lock was opened in 1986.” (E.T.C.)

^ ^ fook fnr Hkou e sa j keyyk th dh nk s e wfr Z ;k a F k h aA -

- - ;s nksuksa ewfrZ;ka lu~ 1934 ds igys ls pyh vk jgh gSaA** ¼ist 107½

"There were two idols of Ramlala in the disputed

structure . . . . . . . Both these idols were in existence from

before the year 1934." (E.T.C)

^^vfHkjke nkl th - - - -fookfnr Hkou ds iqtkjh Hkh Fks fQj dgk

fd&vfHkjke nkl th fueksZgh v[kkM+s ds iqtkjh ugha FksA** ¼ist 123½

"Abhiram Das. . . . . . . was also the priest of the

disputed structure. Then stated that Abhiram Das was not

2092

the priest of Nirmohi Akhara." (E.T.C)

^ ^= q fVo'k e S au s j keyyk th dh nk s e wfr Z ;k s a d s ckj s e s a

crk fn;k Fk kA tcfd ,d jke yyk th dh ewfrZ Fkh vkSj ,d y{e.k

yyk th dh ewfrZ FkhA

jkeyyk th dh ,oa y{e.k yyk th dh nks ewfrZ;kWa lu~ 1934 ds

igys ls pyh vk jgh FkhA** ¼ist 127½

"Inadvertently I had stated about two idols of

Ramlala, when there was one idol of Ramlala and one of

Laxmanlala.

The two idols of Ramlala and Laxmanlala, have been

in existence from before the year 1934." (E.T.C)

^^eq[; ijh{kk ds 'kiFk&i= dk iSjkxzkQ 25 fn[kk;k x;k] ftls

ns[kdj xokg us dgk fd bl iSjkxzkQ esa tks dqN fy[kk gS] og lgh

fy[kk gSA

mijksDr iSjkxzkQ 25 xokg dks fn[kk;k x;k vkSj ;g iwNk x;k

fd bl iSjkxzkQ esa fy[kh ckr fd ';ke&'osr ,yce dk fp=n la0

81 ,oa 82 esa fn[k jgk flagklu pcwrjs dk gS vFkkZr~ jkepcwrjs dk gS\

mijksDr dks ns[kdj xokg us dgk fd bl iSjkxzkQ esa fp= dh

la[;k xyr fy[k x;h gSA

bl iSjkxzkQ esa tks e S au s fp= l a0&81 ,o a 82 dk gokyk

fn;k g S ] mldk mYy s[ k xyr gk s x;k g S ] tk s Vkbi dh

xyrh g SA blh iSjkxzkQ+ 25 dks xokg dks fn[kkdj iwNk x;k fd bl

iSjkxzkQ esa tks Q+ksVks ua0&83 ,oa 84 ds laca/k esa vkius mYys[k fd;k gS]

og fdlh Åijh Hkkx dk mYys[k gS\ mijksDr dks ns[kdj xokg us dgk

fd e sj k i S j kx z kQ 25 dk dFku xyr gk s x;k g SA * * ¼ist 137½

“Paragraph 25 of affidavit filed at the examination-

in-chief was shown to the witness following which he stated

– Whatsoever is stated in this paragraph, is correctly

written.

The aforesaid paragraph 25 was shown to the

witness and a query was put to him as to whether the

2093

throne, visible in photographs 81 and 82 of the black-white

album represented chabutra or Ram Chabutra.

Seeing the aforesaid photographs, the witness stated

that photographs in this paragraph had been wrongly

numbered.

In this paragraph, photographs 81 and 82 have

been quoted wrongly; that is due to typographical error.

This very paragraph 25 was shown to the witness and he

was queried as to which upper portion found place in his

description about photographs 83 and 84 of this

paragraph. Looking at the aforesaid, the witness stated that

his statement in paragraph 25 had gone wrong.”(E.T.C.)

^^muds eq[; ijh{kk 'kiFk&i= ds blh iSjkxzkQ ds 24 dk va'k

^^tUe Hkwfe ftlds lkeus nqdku crk'ks okyk] 29&30 pcwrjk gS**] fn[kk;k

x;k vkSj iwNk fd blls vkidk D;k rkRi;Z gS rks xokg us dgk fd ;g

Hk h xyr fy[k x;k g SA ;g i wj k v a' k Vkbi dh xyrh l s

fy[k x;k g SA * * ¼ist 138½

“A portion of this very paragraph 24 of affidavit filed

at examination-in chief – which portion runs as

'Janmbhumi, opposite to which lie a Batasha-selling shop

and 29-30 chabutras – was shown to the witness and he

was queried as to what he meant by the said words.

Thereupon the witness stated – It is also incorrectly

written. This portion in its entirety has come to be

written due to typographical error.” (E.T.C.)

2020. Regarding the period of construction of Ram

Chabutara, he said :

^^bl ewfrZ dks vdcj ds tekus esa fueksZgh v[kkM+s ds egUr us

j[kk Fkk] ml dk uke eq>s ugha ekyweA ;g ckr eSaus vius iwoZtksa ls lquh

gS] dgha i<+k ugha gSA jkepc wrj s ij ftruh Hk h e wfr Z;k W a F k h a] og

lc e qxy ckn'k kg vdcj d s teku s e s a j[k h xb Z Fk h aA

2094

ckn'kkg vdcj ds tekus esa Hkh ;g jkepcwrjk 17 fQV x 21 fQV dk

Fkk] vkSj ml tekus esa Hkh bl ij mlh rjg dk NIij iM+k gqvk Fkk]

tSlk fd lu~ 1950 esa iM+k gqvk FkkA^^ ¼ist 109&110½

"This idol was installed in the period of Akbar by

Mahant of Nirmohi Akhara, I do not know his name. I have

heard this from my ancestors, and have not read it

anywhere. All the idols at the Ramchabutara, had been

installed in the period of Mughal emperor Akbar. In the

period of emperor Akbar also, this Ramchabutara was of

the dimension 17 feet x 21 feet and in that period also, it

had a similar thatch, as was there in the year 1950."

(E.T.C.)

^^bl jke pc wrj s d s lEcU/ k e s a ,d nkok lu ~ 1885 e s a

nk f[ky g qvk Fk kA ;g nkok egUr j?kqcj nkl th us nkf[ky fd;k

Fkk] tks fueksZgh v[kkM+s esa egUr FksA ;g nkok lc&tt QStkckn dh

vnkyr esa nkf[ky gqvk Fkk vkSj igys bl eqdnesa dk fu.kZ; j?kqcj nkl

th ds i{k esa gqvk FkkA ckn esa os vihy esa gkj x,A bldh vihy j?kqcj

nkl th us ugha dh FkhA ft+yk tt dh vihy esa ml fu.kZ; ds ckn

nwljh vihy y[kuÅ esa nkf[ky ugha gqbZA^^ ¼ist 109&110½

"A suit had been filed regarding this

Ramchabutara in the year 1885. This suit had been filed

by Mahant Raghubar Das, who was Mahant of Nirmohi

Akhara. This suit had been filed in the court of Sub-Judge,

Faizabad, and earlier this suit was decided in favour of

Raghubar Das. Subsequently, he lost in appeal. This

appeal had not been preferred by Raghubar Das. No

Second Appeal was filed at Lucknow against the decision

of District Judge in that appeal." (E.T.C.)

^^ml le; jke pc wrj s dk s tUe LFk ku dgk tkrk Fk k ]

tUeHk wfe ugh a dgk tkrk Fk kA mls tUeHkwfe vkt ls lkS o"kZ igys

ls dgk tkus yxkA ml le; Hkh bl jke pcwrjs dk {ks=Qy 17 x 21

2095

fQV gh FkkA** ¼ist 110½

"At that time, Ramchabutara was called

Janmsthan and not Janmbhumi. It started being referred

as Janmbhumi about 100 years ago. At that time also, the

area of this Ramchabutara was 17 x 21 feet." (E.T.C)

2021. About the grated dividing wall between the outer and

inner courtyard, he has said:

^^;g lh[kpksa okyh nhokj okftn vyh 'kkg ds tekus esa cuh Fkh]

tks lu~ 1885 o 1950 esa Hkh dk;e jgh FkhA uokc okftn vyh 'kkg ds

tekus esa lha[kps okyh nhokj cuus dh ckr eSaus lquh gS] dgha i<+h ugha

gSA e S au s ;g lquk g S fd ok ftn vyh 'k kg d s teku s e s a ogk W a

ij cjkcj >xM +k g qvk djrk Fk k vk S j bl dkj.k ;g

lh[kpk s a okyh nhokj cuokb Z xb Z Fk h fd >xM +k 'k k Ur gk s

tk,] ijUr q ;g >xM +k 'k k Ur ugh a g qvkA ;g >xM+k fgUnqvksa vkSj

eqlyekuksa esa gqvk djrk FkkA** ¼ist 110&111½

"This grill wall was built in the period of Wajid Ali

Shah, which existed in the year 1885 and 1950 as well. I

have only heard about the fact of construction of grill wall

in the period of Nawab Wajid Ali Shah, and have not read

it anywhere. I have heard that in the period of Wajid Ali

Shah, there were regular conflicts over there and the

grill wall was built only to end the conflicts, but the

conflicts did not end. These conflicts used to break out

between Hindus and Muslims." (E.T.C)

2022. Though on the one hand he claims that Namaz has

never been offered from the days of Babar in the disputed

building but about existence of idol of Ram Lala in the disputed

building, he said that it is since prior to 1934 but exact date and

period is not known to him:

^^ckcj ds tekus ls vkt rd fookfnr Hkou esa dHkh uekt ugha

gks ikbZ FkhA jkeyyk th fookfnr Hkou esa lu~ 1934 ds igys ls gSa]

2096

ijUrq ;g tkudkjh eq>s ugha gS fd os lu~ 1934 ds fdrus igys ls ogka

FksA e q> s ;g Hk h tkudkjh ugh a g S fd ckcj d s teku s l s lu ~

1934 d s igy s rd ogk a j keyyk th Fk s ;k ugh aA * *

¼ist 112&113½

"Namaz has never been possible in the disputed

structure till date from the times of Babar. Ramlala has

existed in the disputed structure from before the year 1934,

but I do not have knowledge of the fact as to for how long

before the year 1934, was He present over there. I also do

not have knowledge of the fact whether Ramlala existed

over there or not from the times of Babar to the year

1934." (E.T.C)

2023. He admitted the riots of 1934 but says that it did not

cause any damage to the disputed building and only the outer

wall was damaged:

^^lu~ 1934 ds naxs esa fookfnr Hkou dks dksbZ uqdlku ugha igqaWpk

Fkk] dsoy fookfnr ifjlj dh ckgjh pgkjnhokjh dks {kfr igqWph FkhA**

¼ist 127½

“In the 1934 riot, no damage was caused to the

disputed structure but damage was caused only to the outer

boundary wall of the disputed premises.”(E.T.C.)

^ ^lh[kpk s a okyh nhokj tk s igy s ydM +h dh Fk h ] ml s

yk sg s dh cuok;k x;k Fk kA lh[kpk s a okyh nhokj e sa yk sg s d s

lh a[ kp s lu ~ 1934 e s a yxok, x, Fk s vkSj ;g yksgs ds lh[kps tks

naxk VSDl olwy gqvk gqvk Fkk] mlh ls yxok, x, Fks] ijUrq eq>s ;g

tkudkjh ugha gS fd ;s fdlus yxok, FksA lh[kpksa okyh nhokj ds

njokts lu~ 1934 ds igys ls yksgs ds Fks ;k ckn esa yksgs ds gq, Fks]

bldh tkudkjh eq>s ugha gSA** ¼ist 128½

“The grill wall which had earlier been made of

wood, was built using iron. Iron-grills came to be used

in the grill wall in 1934 and the expenses incurred on

2097

fixing these iron-grills had come from riot taxes which had

been realised; but I do not know as to who had carried out

this work. I do not know whether the gates of the grill wall

came to be made of iron prior to or subsequent to

1934.”(E.T.C.)

2024. Regarding preparation of his affidavit, he said:

^^iz'u& rks D;k vkids eq[; ijh{kk ds 'kiFk&i= ds iSjk 24 esa

mfYyf[kr fp= la0 vkius dsoy vuqeku ls fy[k fn;s gSa\

mRrj& e sj s odhy lkgc Jh j athr yky oek Z u s e qvk;uk

djd s viu s l s bl i Sj kx z kQ e sa fp=k s a d s uEcj Mky fn; s

g S aA * * ¼ist 146½

“Question: Have you mentioned the number of the

photograph in paragraph 24 of the affidavit filed at the

examination-in-chief only on the basis of guess-work?

Answer: My counsel, Sri Ranjeet Lal Verma, after

carrying out inspection, has numbered photographs of

this paragraph on his own.” (E.T.C.)

^ ^e sj s bl 'kiFk&i= dk dqN Hk kx e sj s odhy lkgc

d s Kku ij vk/ k k fjr g S ] ijUr q og dk Su lk Hk kx g S ] ;g

e q> s ;kn ugh a g S vkSj eSa bls crk Hkh ugha ikÅWaxkA** ¼ist 231½

“Some portion of this affidavit of mine is based on

the knowledge of my counsel. But I do not remember

which portion it is, I am also not in a position to tell about

it.”(E.T.C.)

^^;g 'kiFk&i= 29-8-2003 dks fy[kk;k x;k] mlh fnu VkbZi

fd;k x;k vkSj mlh fnu lR;kfir fd;k x;kA gyQ +u kek r S;kj

djr s le; e q> s dk sb Z dkxt ugh a fn[k k; s x; s Fk sA * * ¼ist 264½

“This affidavit was dictated on 29.08.2003 and it was

typed and verified on the same day. While preparing the

affidavit I was shown none of the papers.”(E.T.C.)

2025. Then on page 152, when he was asked whether the

2098

claim that the God has manifested (Prakat) in the night of 22nd

December, 1949 as stated in the book "Sri Ram Janam Bhoomi

Ka Rakt Ranjit Itihas" written by late Pt. Ram Gopal Pandey

Shaarad on page 95 is incorrect, he could not say that this is

incorrect and did not happen and instead gave a vague reply :

^^iwNk x;k fd & bl iqLrd ds i"B&95 ij ftl ?kVuk dk

mYys[k 22-12-1949 ds lEcU/k esa fd;k x;k gS] D;k og xyr gS\

mijksDr dks ns[kdj xokg us dgk fd & Hkxoku dk vorkj tc gqvk]

rc izxV gh gq, vkSj ckj&ckj tc t:jr gqbZ rc izxV gq,] blesa

22@23 lu~ 1949 dk iz'u ugha gS vkSj blesa tks dqN Hkh fy[kk gS og

xyr gSA** ¼ist 152½

“Page 95 of this book was shown to the witness and

he was queried as to whether the description of an incident

therein in reference to 22.12.1949, is incorrect. Looking at

the aforesaid page the witness stated – Whenever God

incarnated Himself, He certainly appeared, and He

appeared on frequent occasions as per requirement. It does

not concern 22nd - 23rd December, 1949, whatsoever is

written herein, is incorrect.”(E.T.C.)

2026. About Mahant Raghubar Das, he said:

^ ^eg ar j?k qcj nkl th dk t +e kuk lu ~ 1880 l s 1890

d s yxHkx rd dk jgk gk sx kA ml le; vFkkZr~ 1880 ds yxHkx

mijksDr Bsdk egar j?kqoj nkl th gh mBkrs FksA eg ar j?k qcj nkl

th d s t +e ku s d s bl B sd s l s l ac af / kr dkxt + bl U;k;ky;

e s a bu e qdnekr e s a nk f[ky g S aA egar j?kqcj nkl th ds ckn tks

egar fueksZgh v[kkM+s ds gq, Fks] muds t+ekus ds dkxt Hkh bu eqdnekr

esa nkf[ky gSaA** ¼ist 164½

“The period of Mahant Raghubar Das would have

been from 1880 to circa 1890. It was Mahant Raghubar

Das Ji who used to take the aforesaid contract at that time,

that is, around 1880. Papers related to this contract

2099

belonging to the time of Mahant Raghubar Das are filed

in this case before this Court. Papers belonging to the

period of successor to Mahant Raghubar Das Ji as

Mahanta of Nirmohi Akhara, are also filed in this

case.”(E.T.C.)

^^eg ar j?k qoj nkl th ogh g S a] ftUgk s au s lu ~ 1885

okyk nkok nk f[ky fd;k Fk kA ** ¼ist 199½

“Mahant Raghubar Das is that very person who

filed the 1885 claim.”(E.T.C.)

**iz'u& egar j?kqukFk nkl th jkepcwrjs ds egar Fks vFkok iqtkjh Fks\

mRrj& o s jkepc wrj s d s eg ar Fk sA ** ¼ist 165½

"Question:- Whether Mahant Raghunath Das Ji was

Mahant or 'Pujari' (priest) of Ramchabutara?

Answer:- He was Mahant of Ramchabutara." (E.T.C)

2027. About the police surveillance he said:

^^;g iwNk x;k fd 22@23 fnlEcj lu~ 1949 ds igys fookfnr

Hkou ij iqfyl dk igjk D;ksa jgrk Fkk\ mijksDr dks ns[kdj xokg us

dgk fd igjk bl dkj.k yxrk Fkk fd eqlyeku yksx ,oa eqfLye

iqfyl deZpkjh ogkWa dh ewfrZ gVk nsuk pkgrs FksA ;g igjk ,d&vk/k

lky l s py jgk Fk kA ;g igjk ljdkj dh rjQ ls yxk Fkk] igjk

yxkus dh nj[okLr ugha nh FkhA ;g igjk lu~ 1947 esa vktknh feyus

ds ckn ls yxk FkkA** ¼ist 179½

“When asked why the disputed building used to be

under the police watch prior to 22nd-23rd December,

1949, the witness stated that the deployment of the police

as guards was due to the reason that Muslim public and

Muslim cops and officials wanted to remove idols from

there. This deployment of police as guards had been for

a year or so. This deployment was at the behest of the

government; no application had been moved for such

police deployment. This deployment of police as guards

2100

had been since 1947, that is, since the time of

independence.”(E.T.C.)

2028. About Nawah Path and Bhandara inside the building,

he made certain contradictions:

^^fookfnr Hkou ds vUnj uokg ikB vkSj Hk.Mkjk lu~ 1949 ds

igys esjs lkeus gqvk Fkk] ijUrq fdruh ckj gqvk Fkk] ;g eq>s ;kn ughaA

fook fnr ifjlj d s chp oky s x q Ecn d s uhp s oky s

LFk ku ij uokg ikB g qvk djrk Fk kA ** ¼ist 207&208½

“Nawah Paath and Bhandara (religious rituals) had

taken place in my presence inside the disputed building

before 1949; but I do not remember how many times such

rituals had been performed therein.

Nawah Paath used to take place at a place below

the central dome of the disputed premises.”(E.T.C.)

^^eSaus fookfnr Hkou ds vUnj chp okys xqEcn ds uhps uokg ikB

gksrs ns[kk FkkA** ¼ist 209½

“I had seen Nawah Paath being performed below the

central dome inside the disputed building.”(E.T.C.)

^ ^ fook fnr Hkou d s x q Ecn oky s H k kx d s ckgj vk S j

lh[kpk s a okyh nhokj d s vUnj oky s lgu e s a uokg ikB ugh a

gk sr k Fk kA* * ¼ist 210½

“Nawah Paath did not take place outside the dome

portion of the disputed building and in the courtyard

inside the grill-wall.” (E.T.C.)

* * H k.Mkjk fook fnr Hkou d s vUnj dHk h ugh a gk sr k Fk kA* *

¼ist 211½

"'Bhandara' (collective feast) was never held inside the

disputed premises." (E.T.C)

^^eSaus tks i"B 211 ij ;g dgk fd Hk.Mkjk fookfnr Hkou ds

vanj dHkh ugha gksrk Fkk] ls esjk eryc ;g Fkk fd ogka Hk.Mkjk dHkh

cuk;k ugha x;k ijUrq Hkkstu djk;k tkrk FkkA** ¼ist 215½

2101

“When I on page 211 stated that Bhandara never

took place inside the disputed building, I meant that

Bhandara(food prepared for mass feeding) was never

prepared there but food used to be served.”(E.T.C.)

^^xqEcn okys Hkou ds ckgj lgu esa Hkkstu djk;k tkrk FkkA**

¼ist 216½

“Food used to be served in the courtyard outside the

domed building.”(E.T.C.)

2029. He admits that ownership or possession on the

disputed building was not claimed in 1885 Suit but since 1934

Nirmohi Akhara is arranging worship continuously and

therefore is claiming right of possession and ownership thereon:

^^lu~ 1885 ds nkos esa fookfnr Hkou ij viuk LoRo ;k vf/kdkj

mUgksaus ugha fn[kk;k Fkk] y sfdu lu~ 1934 l s cjkcj i wtk&ikB

fuek sZ g h v[k kM + s d s }kjk ogk a gk sr k pyk vk jgk g S ] blfy,

vc ge ml ij LoRo ;k vf/ kdkj Dy se dj jg s g S aA **

¼ist 229½

“They had not shown their title or right over the

disputed building in the 1885 claim; but we are now

laying our title or right over the same as Pooja-Paath

has always been performed by the Nirmohi Akhara since

1934.”(E.T.C.)

2030. The idol of Ram Lala, placed in the disputed building,

is Chal Vigrah:

^^jkeyyk th dh tks ewfrZ fookfnr Hkwfe esa flagklu ij j[kh Fkh

mls ge py fox zg dg s ax sA ** ¼ist 232½

“We will call the idol of Ramlala Ji, seated on the

throne in the disputed building, 'Chal-vigrah' (movable

form of deity).”(E.T.C.)

2031. About Pran Prathishtha, DW 3/1 says:

^^vkerkSj ls izk.k] izfr"Bk dh fof/k esa de ls de ikWap fnu yxrs

2102

gSa vkSj de ls de ikWap] iafMr feydj izk.k izfr"Bk djrs gSaA tgkWa ij

izk.k izfr"Bk djuk gksrk gS] mlds ikl esa e.Mi curk gS vkSj ogka ;K

gksrk gS] ftlesa tykf/okl] vUukf/kokl] 'kS;~;kf/kokl vkfn izdj.k gksrs gSa

vkSj gou gksrk gS] rFkk uxj dh ifjdzek gksrh gS] rc tgkWa ij eafnj esa

ewfrZ LFkkfir fd;k tkuk gksrk gS] ogkWa ewfrZ dks LFkkfir fd;k tkrk gSA**

¼ist 233½

“The ritual of 'Pranpratishtha' (vivification)

normally takes at least five days and at least five Pandits

(scholarly men) collectively perform 'Pranpratishtha'.

'Mandap' (canopy-like structure) is erected near the place

where 'Pranpratishtha' is to be performed, and 'Yajna'

(sacrifice) is performed there which comprise 'Jaladhiwas',

'Annadhiwas', 'Shaiyyadhiwas' etc.; and 'Hawan' is also

performed and 'Parikrama' is also done of the town in

whose temple idol is to be installed or is installed.”(E.T.C.)

2032. He explained about the temple on the north of the

disputed site:

^^xqnM+rM+ okys eafnj dks tUeHkwfe eafnj ugha dgrs gSa ysfdu

tUeHkwfe eafnj dk izkphu uke tUe LFkku gS] ckn esa ;g tUeHkwfe ds

uke ls izpfyr gqvk vkSj dkx+t+krksa esa bldk uke tUeLFkku djds gh

ntZ gSA lSdM+ks o"kZ igys ls bl tUeLFkku dks tUeHkwfe dgk tkus yxkA

;g ifjorZu dc] dSls gqvk] bldh dksbZ eq>s tkudkjh ugha gSA**

¼ist 244½

“The Gudadtad temple is not called Janmbhumi

temple but the old name of the Janmbhumi temple is

Janmsthan, which later came to be known as Janmbhumi

and its name is recorded only as Janmsthan in records.

Hundreds of years ago, this Janmsthan came to be called

Janmbhumi. I have no knowledge as to how and when this

change came to be.”(E.T.C.)

2033. However, about maintenance of building, he could not

2103

say anything very clearly:

^ ^lu ~ 1946 l s 29 fnlEcj lu ~ 1949 d s chp

fook fnr Hkou dh p wu kdkjh vFkok i qrkb Z g qb Z Fk hA ;g iqrkbZ

yxHkx gj o"kZ gksrh FkhA ,d ckj fookfnr Hkou esa iqrkbZ esa fdruk

O;; gk sr k Fk k ] bldh tkudkjh e q> s ugh a g SA * * ¼ist 253½

“Between 1946 and 29th December, 1949, the

disputed building was lime-washed or white-washed.

This white washing used to be done almost every year. I do

not have the knowledge as to how much expenditure was

incurred in white washing the disputed building

once.”(E.T.C.)

2034. DW 3/2 Raja Ram Pandey claims to have visited

disputed site for worship of Sri Ram Lala since 1930:

^^eSa lu~ 1930 ls jketUeHkwfe ij n'kZu djus tkrk jgk gwaA eSaus

jketUeHkwfe dh ifjdzek Hkh cjkcj dh gSA ;g lgh gS fd guqer }kj

okyh nhokj esa gh nkfguh rjQ okjkg Hkxoku dh izfrek rk[kk esa FkhA

rk[kk] iwohZ nhokj esa nf{k.k dh rjQ FkkA** ¼ist 20½

“I have been going to have darshan at

Ramjanmbhumi since 1930. I have always also performed

circumambulation at Ramjanmbhumi. It is true that an idol

of Lord Varah was on a niche to the right of the wall itself

having the Hanumat Dwar. The niche was on the southern

side in the eastern wall.”(E.T.C.)

^^fook fnr Hkou e s a e S a tc l s H k h n'k Zu dju s tk jgk

g wW a] mlh le; l s e wfr Z ogk W a ij fojkteku g S ] ij dc l s

Fk h ] bldk e q> s Kku ugh a g SA fook fnr Hkou e s a tc e S a

igyh ckj lu ~ 1939 e s a x;k Fk k ] ml le; ogka Hkxoku

fojkteku Fks vkSj eSa mudh iwtk o n'kZu djds pyk vk;k FkkA lu ~

1930 d s ckn l s e S a fook fnr Hkou esa Hkxoku@ewfrZ dks fojkteku

ns[k jgk gwWaA** ¼ist 26½

“The idol is present there since the time I have

2104

been going to have 'Darshan' at the disputed building.

But I do not know since when it has been there. In 1939,

when I first went to the disputed building, 'Bhagwan' was

seated there and I returned from there after performing

'Pooja' and having 'Darshan' of Him. I have been seeing

Bhagwan/idol of Bhagwan seated in the disputed building

since 1930.”(E.T.C.)

^^eSaus gt+kjksa ckj dqd+hZ ds igys vk/kk ?kUVk ls ,d ?k.Vk rd chp

okys xqEcn ds uhps cSBdj jkedhrZu fd;k FkkA** ¼ist 39½

“Prior to the attachment, I had thousands of times

performed 'Ramkirtan' by sitting beneath the central dome

for half an hour to an hour.”(E.T.C.)

2035. He denied construction of mosque by Babar in 1528:

^^;g dguk xyr gksxk fd ckcjh efLt+n lu~ 1528 esa cuh FkhA**

¼ist 25½

“It would be wrong to say that the Babri mosque was

built in 1528 AD.”(E.T.C.)

2036. In the zeal of denying existence of any mosque at the

disputed sight he gave different versions about his knowledge of

the word "Babri Masjid":

^ ^e S a lu ~ 1949 d s ckn l s ckcjh efLtn dk uke lqu

jgk g wW a] mlls igys eSaus ckcjh efLtn dk uke ugha lquk FkkA lu~

1949 ls ftl ckcjh efLtn ds ckjs esa lqu jgk gwWa] og v;ks/;k esa dgkWa

ij fLFkr gS ;k Fkh] bldh eq>s tkudkjh ugha gSA mldk eqdnek py

jgk gS] bldh tkudkjh eq>s gSA** ¼ist 62½

“I have been hearing of the Babri mosque since

1949; I had not heard of the Babri mosque earlier. I do not

know where in Ayodhya the Babri mosuqe – about which I

have been hearing since 1949 – is or was situated. I have

the knowledge that a case in this connection is going

on.”(E.T.C.)

2105

^ ^eUuku lkgc d s ftjg dju s ij e q> s ;g eky we g qvk

Fk k fd ftl Hkou dk s e S a tUeH k wfe efUnj dgrk g wW a mlh

dk s e qlyeku yk sx ckcjh efLtn dgr s g S aA * * ¼ist 62½

“From Mannan Sahib's cross-examination I came

to know that the building which I call Janmbhumi

temple is called the Babri mosque by Muslims.” (E.T.C.)

^^fookfnr Hkou dh dqdhZ ds ckjs esa lekpkj eSaus lu~ 1949&50 esa

i<+k FkkA mu lekpkjksa esa Hkh ckcjh efLtn dk uke ugha vk;k FkkA**

¼ist 63½

“In 1949-50 I went through the news regarding the

attachment of the disputed building. The words 'Babri

mosque' had not occurred in those pieces of news.”(E.T.C.)

* *eSaus ,slk ugha lquk fd og <kWpk ckcj ds le; Fkk] bl dkj.k

yksx mls fxjkuk pkgrs FksA eSa ml fookfnr Hkou dks eafnj le>rk

FkkA** ¼ist 72½

"I have not so heard that the structure was of the

time of Babar, therefore, people wanted to demolish the

same. As regarded that disputed building as temple."

(E.T.C)

^^esjh eqlyekuksa ls eqykdkr gksrh jgh Fkh vkSj lu~ 1992&93 esa

Hkh eqykdkr gksrh jgrh Fkh] ijUrq fdlh eqlyeku us eq>ls ;g ugha dgk

fd 6 fnlEcj lu~ 1992 dks ckcjh efLtn fxjk nh x;h FkhA** ¼ist 73½

“I had been meeting Muslims and I used to have

meetings with them in 1992-93 as well; but none of the

Muslims told me that the Babri mosque had been

demolished on 6th December, 1992. ”(E.T.C.)

* *tc Jh vCn qy eUuku lkgc dh ftjg e s a ckcjh

efLtn dk uke vk;k rc e S au s ;g le> fy;k Fk k fd ;g

mlh fook fnr Hkou l s l ac af / kr g S ] ftldk s e S a j ke tUe

Hk wfe le>rk jgk g wW A * * ¼ist 74½

"When the name of Babri mosque appeared in the

2106

cross-examination of Sri Abdul Mannan, I understood

that the same related to the same disputed building

which I have been regarding as Ramjanambhumi."

(E.T.C)

^ ^e S a 22 flrEcj lu ~ 2003 dk s y[kuÅ gkb Zdk sV Z

vk;k ] rk s ,d dej s ij e S au s fy[k k g qvk i< +k

^ ^j ketUeH k wfe&ckcjh&efLtn* * ] rk s e sj h le> e sa vk;k fd

^ ^j ketUeH k wfe efUnj * * dk ^ ^ckcjh efLtn* * l s dk sb Z lEcU/ k

g SA * * ¼ist 152½

"On 22nd September, 2003 I came to Lucknow

High Court and read 'Ramjanmbhumi-Babri Masjid'

written outside a room, when I came to understand that

'Ramjanmbhumi temple' has some relation with 'Babri

mosque'." (E.T.C)

2037. When faced certain problem due to long drawn cross

examination, he immediately took recourse to age old defence

of "weak memory" and says:

^^esjh vk;q 87 o"kZ gks x;h gS vkSj e sj k foo sd Bhd dk; Z

ugh a djrk g S ] bl dkj.k e q> s ;kn ugh a jgrk g S fd e S au s dc

D;k dgkA esjs mijksDr c;kuksa esa ls vkt okyk mijksDr c;ku lgh gS]

dy fnukad 30-9-2003 okyk c;ku =qfVo'k ns x;k gwWaA** ¼ist 70½

“I have grown 87 years old and my discretion does

not work in a proper manner. For this reason, I fail to

remember which particular thing I stated at a particular

time. Of the aforesaid statements, the above mentioned

statement given by me today is correct; I have wrongly

given the statement dated 30.09.2003.”(E.T.C.)

2038. About the period as to when the idols were kept in the

disputed building he says:

^^eq>s ;g Kku ugha gS fd fookfnr rhu xqacnksa okys Hkou esa

ewfrZ;ka dc vkSj fdlus j[kokbZ] ijUrq tc ls eSa ogkWa tk jgk gwWa] rc ls

2107

mUgas ogka ns[k jgk gwWaA mRrj okyk QkVd dsoy esyk esa [kqyrk FkkA**

¼ist 76½

"I do not have knowledge of the fact as to who

installed the idols in the three dome disputed structure and

when, but ever since I have been going there, I have seen

them over there. The northern gate used to open only

during fairs." (E.T.C)

2039. Regarding the dividing wall between outer and inner

courtyard as well as 1934 damage, he says:

^^ftl nhokj esa ydM+h ds taxys yxs gksuk eSa crk jgk gwWa] ;g

ogh nhokj gS] ftlesa lu~ 1949 ds igys ls yksgs ds lh[kps yxs gq, FksA

bl nhokj e s a yk sg s d s lh[kp s lu ~ 1949 l s yx s g S a] mll s

igy s lu ~ 1930 l s ydM +h d s t axy s yx s g q, Fk s ] fQj dgk fd

ydM+h ds taxys lu~ 1930 ds igys ls yxs gq, FksA blh nhokj dk s

lu ~ 1934 e sa eke wyh {k fr ig q W ap h Fk hA bl nhokj d s vykok

fook fnr Hkou d s vU; fdlh Hk kx dk s lu ~ 1934 e sa e S au s

{ k frx zLr ugh a n s[ k kA fookfnr LFky ds djhc lu~ 1934 ds naxs esa

dksbZ Hkh eqlyeku ugha ekjk x;k Fkk] v;ks/;k esa 8&10 eqlyeku ekjs x,

FksA esjh tkudkjh esa ugha gS fd fookfnr Hkou dh ftl nhokj dks {kfr

igWqph Fkh] mldh ejEer djkbZ xbZ Fkh] ;k ughaA ml nhokj dk s

{ k frx zLr :i e s a e S a lu ~ 1949 rd n s[ krk jgkA* * ¼ist 88½

"The wall in which I am stating about fixation of

wooden 'Jangla' (grating), is the same wall in which iron

grills were fixed prior to the year 1949. The iron grills in

this wall are fixed since 1949, prior to it were wooden

'Jangla' since 1930, then stated that the wooden 'Jangla'

were fixed before the year 1930. This very wall had

suffered minor damage in the year 1934. Apart from this

wall, I did not see any other part of the disputed

structure damaged in the year 1934. No Muslim was

killed near the disputed structure in the riot of the year

2108

1934. 8-10 Muslims were killed in Ayodhya. It is not within

my knowledge whether the wall of the disputed structure,

which had suffered damage, had been repaired or not. I

had seen that wall in a damaged state till the year 1949."

(E.T.C)

^^;g dguk xyr g S fd lu ~ 1934 d s n ax s e s a fook fnr

Hkou d s f'k[kj mldh if'peh nhokj ,oa Q+'kZ vkfn dks { k frx zLr

fd;k x;k Fk kA* * ¼ist 89½

"It is wrong to say that the dome, western wall and

floor of the disputed structure had been damaged in the

riot of the year 1934." (E.T.C)

(Note: This is contradictory to DW 3/1, page 127.)

^^;g dguk Hkh xyr gS fd ftl nhokj esa ydM+h ds taxys gksuk

eSaus crk;k gS] muesa dHkh ydM+h ds taxys ugha yxs FksA ;g Hkh dguk

xyr gS fd mDr nhokj esa lu~ 1930 ds igys ls gh yksgs ds

lh[kps@taxys yxs FksA** ¼ist 89½

"It is also wrong to say that the wall, in which the

wooden windows are stated to have been fixed, never had

wooden 'Jangla' . It is also wrong to say that iron

grill/'Jangla' had been fixed in the said wall before the

year 1930." (E.T.C)

2040. On the one hand he admits weak memory due to old

age but on the other hand he is able to tell as to what actually

happened when for the first time he went to visit the disputed

site in 1930 and that too after almost 73 years:

^^esjs firk th izFke fnu tc eq>s ysdj fookfnr Hkou esa n'kZu

djkus x, rks QkVd ij gh mUgksaus crk;k fd ns[kks bu [kEHkksa esa guqeku

th dh ewfrZ yxh gS vkSj bls guqer }kj dgrs gSa vkSj mUgha ds crkus ds

vk/kkj ij eSaus ;g ckr dgh gSA** ¼ist 150½

"On the first day when my father took me to the

disputed structure for 'darshan', he told me at the gate-

2109

look, these pillars contain the idol of Hanuman Ji and it is

called Hanumatdwar and it is on basis of facts told by him

that I have stated these facts." (E.T.C)

2041. DW 3/3, Satya Narain Tripathi claims to have visited

the disputed building since 1941 several times and has seen the

idol of Lord Ramlala in the Garbhgrih, i.e., under the central

dome of the disputed building. He is not resident of Ayodhya

but reside at Village Mahawan, Tahsil Bikapur, District

Faizabad and was born on 08.09.1931. His village is about 35

kms from Ayodhya. He did not deny, as such, any incident

whether took place in the night of 23/12/1949 on page 22.

^^eq>s irk ugha fd fnukad 23-12-1949 dh jkr dks dqN yksxksa us

?kql dj ewfrZ;ka j[kh ;k ughaA**

“I do not know whether or not some persons had

entered and placed idols on the night of 23.12.1949.

”(E.T.C.)

2042. On page 37 he claims that the disputed building was

constructed by Vikramaditya. On page 80 he said about the size

of the three domes as under:

^^fookfnr Hkou esa rhu xqEcn FksA rhuk s a x q Ecn ,d gh

vkdj d s Fk sA * *

“There were three domes in the disputed building.

All the three domes were of the same size." (E.T.C.)

2043. This statement is ex facie incorrect since the central

dome was bigger than the rest two and it is virtually the

admitted position by all the parties. We also find it from the bare

perusal of the photographs of the disputed building available to

us. Most of the statement of this witness is based on assumption

and hearse, i.e., the information he has received. On the one

hand he gave statement about his visit to the disputed site very

accurately but regarding placement of various items thereat he

2110

made contradictory statement. On page 24 he said that there

were idols of Ramji, Lakshmanji and Hanumanji kept on

Sinhasan which remain there from 1941 to 1992 (page 25) but

then on page 26 he retracted from the said statement after

looking to the photographs and said that it was not clear to him

when he used to visit and in what manner the idols were kept.

2044. DW 3/4, Mahant Shiv Saran Das, a Bairagi of

Ramanandi Sampraday, claims that he is visiting Ram

Janambhumi since 1933 and has worshipped the idols of Lord

Ramlala inside the disputed building under the central dome,

i.e., Garbhgrih. On page 13 he, however, improved upon his

statement by stating that he was born in 1920 and since 1930 to

1942 he remained at Ayodhya continuously.

^^v;ks/;k esa eSa 10 o"kZ dh vk;q ls lu~ 1942 rd yxkrkj jgk gwWaA

esjk tUe o"kZ 1920 esa gqvk FkkA lu~ 1930 esa eSa nl o"kZ dk Fkk vkSj lu~

1930 ls lu~ 1942 rd eSa yxkrkj v;ks/;k esa jgk vkSj ;g vof/k

yxHkx 12 o"kZ dh gksrh gSA**

“From the age of 10 years up to 1942, I have always

been at Ayodhya. I was born in 1920. I was 10 years old in

1930, and I continued to reside at Ayodhya from 1930 to

1942, and this period is of nearly 12 years.”(E.T.C.)

2045. This statement is contradicted by him repeatedly.

^^eSa v;ks/;k lSdM+ksa ckj x;k gwWa vkSj ogkWa ij eSa jgk Hkh gwWaA - - - -

vyhxat esa gekjs ?kj ds lkeus gh ,d efLtn gSA - - - - - 11 o"kZ dh

voLFkk esa esjk ;Kksiohr gks x;k Fkk] mlds ckn eSaus ?kj NksM+ fn;k

FkkA** ¼ist 28½

“I have been to Ayodhya hundreds of times and I

have also resided there. . . . . . . There is a mosque right in

front of our house at Aliganj. . . . . . . . My 'Yogyopaveet'

(sacrificial thread ceremony ) was solemnised when I was

11 year old. After that I left the house.”(E.T.C.)

2111

^ ^12 o" k Z dh voLFk k e sa e S a v;k s/; k x;k Fk k vkSj mlh

le; ls eSaus ewfrZ;kWa gh ns[kh gSaA eq>s /;ku ugha gS fd tc eSa 12 o"kZ dh

vk;q dk Fkk] ml le; lu~ dkSu lk FkkA eSa vankt ls Hkh lu~ ugha crk

ldrkA** ¼ist 29½

“At the age of 12, I visited Ayodhya and since then I

have seen the idols only. I do not remember which year was

in the running when I was 12 years old. I cannot tell the

year even by guess.”(E.T.C.)

^ ^v;k s/; k e s a e S a ml oDr l s jgk tc e S a egjkt th

dk f'k "; cukA e S a egkjkt th dk f'k "; lu ~ 1945 e s a cukA

mlds ckn 5&6 lky rd eSa cM+h Nkouh esa egkjkt th dh lsok djrk

FkkA mlds ckn vius xq: HkkbZ jke euksgj nkl th ds lkFk vgenkckn

pyk x;kA** ¼ist 34½

“I began to reside at Ayodhya since I became the

disciple of Maharaj Ji. I became disciple of Maharaj Ji

in 1945. After that, I served Maharaj Ji at Badi Chhavani

(big cantonment) for 5-6 years. Thereafter I went to

Ahmedabad with my Gurubhai (disciple of the same

spiritual teacher), Ram Manohar Das Ji. ”(E.T.C.)

^ ^e S a 11 o" k Z dh me z e s a x qtjkr x;k Fk kA e S a ogk W a

djhc 13 lky rd jgkA* * ¼ist 38½

“I went to Gujrat while being 11. I resided there

for about 13 years.” (E.T.C.)

^^esjs egkjkt th cM+h Nkouh ds Jh Jh 108 egUr Jh Lokeh

dkS'ky fd'kksj nkl th Fks vkSj os 80 lky rd v;ks/;k esa jgs vkSj mlh

nkSjku xn~nh'khu jgsA eSa Jh egUr th ds lkFk yxHkx 10 lky v;ks/;k

esa jgkA tgkWa Jh egUr th jgrs Fks] ogha eSa Hkh jgrk FkkA eSa muds lkFk

lu~ 1946 ls lu~ 1956 rd jgkA 1956 ds ckn eSa vius xq#HkkbZ ds lkFk

Jh }kfjdk th pyk x;kA** ¼ist 40½

“Sri Sri 108 Mahant Sri Swami Kaushal Kishore Das

Ji of Badi Chhavani was my Maharaj Ji (spiritual teacher)

2112

and he resided at Ayodhya for 80 years and continued to

assume the seat during that very period. I resided at

Ayodhya along with Sri Mahant Ji for nearly 10 years. I

resided wherever Sri Mahant Ji resided. I was with him

from 1946 to 1956. After 1956 I went to Sri Dwarika Ji

along with my Gurubhai.”(E.T.C.)

^^lu~ 1945&46 ds mTtSu ds dqEHk esa Jh Jh 108 Jh Lokeh

fueZy nkl th egkjkt us eq>s ukxk cuk;kA ml le; eSa vgenkckn esa

gh jgrk FkkA** ¼ist 41½

“Sri Sri 108 Sri Swami Nirmal Das Ji Maharaj

initiated me as a Naga at the Kumbh held in Ujjain in

1945-46. At that time I resided in Ahmedabad

itself.”(E.T.C.)

^^eSa ;g ugha crk ikÅWaxk fd eSa v;ks/;k esa fdrus o"kZ rd jgk]

D;ksafd eq>s fxurh ugha ekyweA esjk ;Kksiohr 11 lky dh mez esa gqvk

Fkk vkSj mlds nks ekg ckn eSa v;ks/;k pyk x;k vkSj lk/kw cu x;k FkkA

;Kksiohr 11 lky dh vk;q esa gh gksrk gSA ;Kksiohr esa czkg~e.k vkrs gSaA

v;ks/;k tkrs gh eSa cM+h Nkouh esa Jh Jh 108 Jh Lokeh dkS'ky fd'kksj

nkl th dk f'k"; gks x;kA esjh egUr th ls igyh nQ+k ogha cM+h

Nkouh esa eqykdkr gqbZ Fkh vkSj muds f'k"; cuus ds ckn eSa 10 lky ogkWa

jgk FkkA** ¼ist 41&42½

“I am not in the position to tell for how many years I

resided at Ayodhya because I do not know the numbers. My

Yagyopaveet was solemnised while I was 11, and two

months after that I went to Ayodhya and became a saint.

Yogyopaveet is performed only at the age of 11 years.

Brahmans come to attend Yagyopaveet. Immediately after

going to Ayodhya I became the disciple of Sri Sri 108 Sri

Swami Kaushal Kishore Das Ji of Badi Chhavani. I had

first met my Mahant Ji at that very Badi Chhavani and I

resided there for 10 years after becoming his

2113

disciple.”(E.T.C.)

^ ^ fook fnr Hkou tk s rhu x q Ecn dk Fk k ] ogk W a e S a lu ~

1936 l s tk jgk g W wA tc eSa fookfnr Hkou esa igyh ckj lu~ 1936

esa x;k Fkk] rks chp okys xqEcn ds uhps rd x;k FkkA** ¼ist 42½

“Since 1936, I have been going to the disputed

building which had three domes. In 1936, when I first

went to the disputed building, I went up to beneath the

central dome.”(E.T.C.)

^ ^lu ~ 1938 l s lu ~ 1950 rd e S a v;k s/;k e s a ugh a jgk ]

ijUr q v;k s/; k vkrk Fk k vk S j bl nk S j ku tc e S a v;k s/;k

vkrk Fk k ] rk s fook fnr LFky dh rjQ ugh a tkrk Fk k vk S j

vxj tkrk Hk h Fk k rk s ckgj l s gkFk tk sM +dj yk SV vkrk

Fk kA ^ ^ ¼ist 54½

“I did not reside at Ayodhya from 1938 to 1950 but

whenever I came to Ayodhya I did not go towards the

disputed site and if I at all went there I returned from

outside after saluting the place with folded hands.”

(E.T.C.)

eSa lu~ 1938 rd v;ks/;k esa jgk Fkk vkSj mlds ckn lu~ 1938 ls

lu~ 1957 rd vgenkckn] e/; izns'k] dkfB;kokM+] cEcbZ vkfn esa Hkze.k

djrk jgk vkSj lu~ 1958 esa eSa dSyk'k ioZr vkSj eku ljksoj dh ;k=k

ds fy, x;k FkkA** ¼ist 54½

“I resided at Ayodhya until 1938 and after that kept

travelling to Ahmedabad, Madhya Pradesh, Kathiyavad,

Bomaby, etc. from 1938 to 1957, and went on journey to

Mountain Kailash and Mansarovar in 1958. ”(E.T.C.)

^^eSa fookfnr Hkou ds uhps okys Hkkx esa de ls de lSdM+ksa ckj

x;k gksÅWaxkA Lo;a dgk fd eSa ogkWa iqtkjh Fkk] HkaMkjh Fkk vkSj Hkksx Hkh

yxkrk FkkA eSa Jh jketUe Hkwfe esa iqtkjh FkkA Jh jke tUe Hkwfe ls esjk

rkRi;Z rhu xqEcn okys fookfnr Hkou ls gh gSA eq>s lu~ ugha ;kn gS fd

fdl lu~ esa eSa ogkWa iqtkjh Fkk] ijUrq jke tUe Hkwfe tc jke tUe Hkwfe

2114

ugha Fkh] mls fookfnr ugha dgk tkrk Fkk] rc eSa ogkWa iqtkjh Fkk vkSj

Hk.Mkjh Hkh FkkA** ¼ist 66½

“I must have gone to the lower part of the disputed

building at least hundreds of times. (Himself stated) I was a

priest there; I was a Bhandari and I also performed 'Bhog'

(offering of meal to deity). I was a priest at Sri

Ramjanmbhumi. By Sri Ramjanmbhumi I mean three

domed disputed building. I do not remember the year in

which I was a priest there but at the time when

Ramjanmbhumi was not Ramjanmbhumi and as such it was

not fit to be termed as disputed, I was a priest as also a

Bhandari there.”(E.T.C.)

^^eSa rhu xqEcn okys fookfnr Hkou esa iqtkjh Hkh jgkA eq>s ;g

;kn ugha gS fd eSa rhu xqEcn okys fookfnr Hkou esa 10&20 ckj x;k Fkk

;k 100&200 ckj x;k ;k fdruh ckj x;kA eq>s ;kn ugha gS fd rhu

xqEcn okys fookfnr Hkou esa eSa fdrus fnu iqtkjh ds :i esa jgk gwWaA eSa

rhu xqEcn okys fookfnr Hkou esa iqtkjh ds :i esa 2&4 lky jgkA**

¼ist 74½

“I was also a priest in the three domed disputed

building. I do not remember how many times–10-20 times

or 100-200 times – I went to the three- domed disputed

building. I do not remember for how many days I have been

as a priest at the three- domed disputed building. I was a

priest at the three- domed disputed building for 2-4

years.”(E.T.C.)

2046. He contradicted his own statement of page 74 on page

106.

^^iz'u& vki vius mijksDr Lo;a ds c;ku ds vuqlkj v;ks/;k esa lu~

1931 ls lu~ 1957 ds chp dsoy 5&6 eghus yxkrkj jgs gSaA D;k ;g

lgh gS\

mRrj& th gkWaW a] ;gh lgh gSA

2115

iz'u& rks esjk ;g dguk gS fd vkidk 5 Qjojh 2004 ds i"B&74

dk ;g c;ku fd vki ^^rhu xqEcn okys fookfnr Hkou esa iqtkjh ds :i

esa nks&pkj lky** jgs x+yr gks tkrk gSA bl lEcU/k esa vkidks D;k

dguk gS\

mRrj& mijksDr dks ns[kdj xokg us dgk fd esjk ;g c;ku xyr

gk s x;k g SA * *

“Question: As per the aforesaid statement of your own, you

have been at Ayodhya continuously for only 5-6 months

between 1931 and 1957. Is it true?

Answer: Yes, Sir. It is true.

Question: Then I have to say that your statement dated 5th

February, 2004 – mentioned on page 74 and reading as

'You served as a priest at the three domed disputed

building for 2-4 years' – goes wrong. What have you to say

in this respect?

Answer: Going through the aforesaid the witness stated –

this statement of mine has gone wrong.”(E.T.C.)

2047. He also contradicted the very averment made in para 8

of his affidavit about his visit to Ramjanmbhumi since 1933 and

said:

^^fo}ku ftjgdrkZ vf/koDrk }kjk xokg dks muds eq[; ijh{kk ds

'kiFk&i= ds iSjkxzkQ&8 dk va'k ^^JhjketUeHkwfe esa 1933 bZ0 ls n'kZu

djus tkrk jgk gwWa] ^^fn[kk;k x;k vkSj ;g iwNk x;k fd D;k ;g

D;k ;g c;ku Hkh xyr gks x;k gS] D;ksafd ml le; vki v;ks/;k esa Fks

gh ugha\ mijksDr dks ns[kdj xokg us mRrj fn;k fd ble sa lu ~

1933 xyr fy[k x;k g SA * *

“A portion of paragraph 8 in the affidavit filed at the

examination-in-chief – which runs as 'I have been going for

Darshan at Sri Ramjanmbhumi since 1933' – was shown to

the witness by the learned cross-examining counsel and he

was asked whether this statement of his has also turned

2116

incorrect because he was not at all present in Ayodhya.

Going through the aforesaid, the witness replied – The

year 1933 has come to be wrongly written in it.” (E.T.C.)

2048. Then ultimately on page 108 he said:

^ ^e q> s ;g ;kn ugh a g S fd e S a Qjojh lu ~ 1986 l s igy s

fook fnr Hkou e sa dHk h x;k ;k ugh aA * *

“I do not remember whether I had ever gone or not to

the disputed building before February, 1986.” (E.T.C.)

2049. He also contradicted his statement on page 13 about

his continuous stay from 1930 to 1942 on page 102.

^^fo}ku ftjgdrkZ vf/koDrk }kjk xokg dks muds fnukad&14-11-

2003 ds i"B&13 ds c;ku dk va'k ^^v;ks/;k esa eSa nl o"kZ dh vk;q ls

lu~ 1942 rd yxkrkj jgk gwWa** vkSj blh i"B ds c;ku dk va'k ^^vkSj

lu~ 1930 ls lu~ 1942 rd eSa yxkrkj v;ks/;k esa jgk vkSj ;g vof/k

yxHkx 12 o"kZ dh gksrh gS** fn[kk;k x;k vkSj ;g iwNk x;k fd bu

mijksDr nksuksa c;kuksa esa vkius tks lu~ 1942 rd v;ks/;k esa yxkrkj

jgus vkSj 12 o"kZ jgus dh ckr dgh gS] D;k og vkids Åij fn;s x;s

c;ku ds eqrkfcd xyr gS\ mijksDr dks ns[kdj xokg us mRrj fn;k fd

ble sa tk s lu ~ 1930 l s 1942 rd yxkrkj v;k s/;k e sa jgu s

okyh ckr fy[k h g S ] og e S a xyrh l s crk x;k g wW aA * *

“The witness was shown by the learned cross-

examining counsel a portion of the former's statement

dated 14.11.2003 – mentioned on page 13 and running as 'I

have continuously been at Ayodhya from the age of 10

years until 1942' – as also a portion of the statement

mentioned on this very page – which runs as 'And I resided

continuously from 1930 to 1942 at Ayodhya and this period

is of nearly 12 years' – and a question was put to him

whether his version as in the aforesaid two statements to

the effect that he resided at Ayodhya continuously up to

1942 and this period spanned 12 years, was incorrect as

2117

per the statement given by him. Going through the

aforesaid, the witness replied that the factum of his

residing at Ayodhya continuously from 1930 to 1942 has

wrongly been mentioned therein by him.”(E.T.C.)

2050. DW 3/5, Raghunath Prasad Pandey is resident of

village Sariyawan, a place about 16-17 kms from the disputed

place. Later on page 34 he however rectified his statement of

para 1 of the affidavit saying that the actual distance is about 14-

15 kms. He was born in October, 1930 and his father died when

he was six years of age, i.e., 1936. He claims to have visited

Ayodhya alongwith his mother from 1937 to 1948 and that the

idols of Lord Ramlala was inside the building under the central

dome, i.e., Garbhgrih. Later on when he was confronted with

various photographs of the disputed building he got confused

and made contradictory statement. In order to justify his

statement about location of Sumitra Bhawan, he even disputed

the map prepared by Court Commissioner, Sri Shiv Shankar Lal,

which map has not been disputed by most of the witness of

Nirmohi Akhara as well Akhara itself, and ultimately he

admitted on page 84 that his statement is wrong.

^^mijksDr dks ns[kdj xokg us dgk fd e sj k mijk sDr c;ku

xyr gk s x;k g SA - - - -mijksDr dks ns[kdj xokg us mRrj fn;k

fd esjk mijksDr c;ku x +yr gk s x;k g S ] D;ksafd lu~ 1991 esa ;g

lqfe=k Hkou m0iz0 ljdkj }kjk fxjk fn;k x;k FkkA**

“Going through the aforesaid, the witness stated –

the aforesaid statement of mine has turned incorrect. . .

. . . . Going through the aforesaid the witness replied – The

aforesaid statement of mine has turned wrong because

this Sumitra Bhawan was demolished by the Government of

Uttar Pradesh in 1991. ”(E.T.C.)

2051. Most of his statement travelled in the facts of antiquity

2118

and, therefore, wholly irrelevant and inadmissible since

admittedly he had no personal knowledge of those facts. So far

as the statement of his personal belief that the disputed place is

where Lord Rama was born, the same being matter of faith and

belief, no comment is called for but rest of his statement about

the history of the period of Lord Rama etc. is wholly

inadmissible. When asked about the source of his knowledge he

says on page 101 that he has heard the stories from his teachers.

On page 102 he says that three domed structure was constructed

by Raja Vikramaditya. Then he modified it on page 105 stating

that the building constructed by Vikramaditya was demolished

and thereafter the disputed building was constrcuted and for this

information refers to Ayodhya Mahatam. Sri R.L. Verma,

Advocate for Nirmohi Akhara, did not dispute that Ayodhya

Mahatam nowhere mentions that the building constructed by

Raja Vikramaditya was demolished and thereafter the disputed

building was constructed. The witness is an educated man

having worked in Indian Railway since 1948 till 1988.

However, on page 170 he claims to have heard the name of

'Babari mosque' for the first time on 18.11.2003.

^ ^18 uoEcj lu ~ 2003 dk s tc e S a ;gk W a c;ku n su s

vk;k Fk k rc e S au s y[kuÅ e sa igyh ckj ckcjh efLtn dk

uke lqukA mlls igys eSaus dHkh ckcjh efLtn dk uke ugha lqukA

eSaus 18 uoEcj lu~ 2003 dks gh ;g ckr igyh ckj lquh Fkh fd

eqlyeku yksx fookfnr Hkou dks efLtn ekurs gSaA**

"I first heard the name of Babri mosque in

Lucknow when I came here to give my statement on 18th

November, 2003. Prior to it, I had never heard the name of

Babri mosque. On 18th November, 2003 itself I had heard

for the first time that the Muslims considered the disputed

structure to be a mosque." (E.T.C)

2119

2052. Very interestingly he admits on page 172 that he has

wrongly stated on page 45 that he read his affidavit after it was

typed out but before its verification.

^^iz'u& rks D;k vkids mijksDr i"B&45 ds c;ku esa ;g x+yr fy[k

x;k gS fd vkius mijksDr 'kiFk&i= dks VkbZi gksus ds mijkar vkSj

lR;kfir gksus ds iwoZ QStkckn esa i<+k Fkk\

mRrj& th gkWa] ;g ckr x +yr gk s xb Z g SA * *

"Question:- Then have you wrongly stated at the aforesaid

page-45 of your statement that you had read the aforesaid

affidavit at Faizabad, after it was typed out and before it

was verified?

Answer:- Yes, this mistake has occurred." (E.T.C)

2053. DW 3/6 Sitaram Yadav was born in 1943 and,

therefore, virtually had no personal knowledge about the facts as

they were, upto December 1949. Whatever he says is hearse and

inadmissible. We do not find that for the state of affairs as

prevailed upto December, 1949 his statement can be treated to

be relevant. Much of his averments are not relevant since he is

basically a witness of fact produced to show firstly that the

worship was going on inside the disputed building prior to

December, 1949 and the idols of Lord Ramlala also exist thereat

since before that and that all these things were in possession and

management of Nirmohi Akhara which information also he has

given based on information he has received, as he has no such

personal knowledge.

2054. DW 3/7, Mahant Ramji Das was born on 13.04.1923

at Katni (Madhya Pradesh) and has visited Ayodhya at the age

of 11 and 12 years.

^^fook fnr LFky dk s fgUn w leqnk; ds yksx vukfndky ls

Jh jkepUn z th dh tUe Hk wfe ekudj i wtk djr s g S aA - - - -

Hkxoku jke dk tc ls tUe gqvk] rc ls ml LFky dh iwtk gksrh jgh

2120

gS] mlds igys Hkh ml LFky dh iwtk gksrh jgh gSA** ¼ist 18½

"The followers of Hinduism have been worshiping the

disputed site since time immemorial by considering it to

be the birthplace of Sri Ramchandra.. . . . . . The said site

has been worshiped since Lord Rama was born. The said

place was worshiped even before that." (E.T.C)

^^lu~ 1934 ls lu~ 1992 rd eSaus fookfnr LFky dks ,oa mlds

ikl fLFkr pkSdk] pwYgk] csyu] vFkkZr~ dkS'kY;k jlksbZ dks mlh :i esa

ns[kk gSA** ¼ist 20½

"From the year 1934 to 1992, I have seen the disputed site

and the 'Chauka', 'Chulha' (hearth), 'Belan' i.e. the

Kaushalya Rasoi, in the same form." (E.T.C)

^ ^ fgUn qvk s a dh ijEijk ] vkLFk k ,o a fo'okl pyk vk

jgk g S fd x q Ecn oky s fook fnr Hkou d s chp oky s x q Ecn d s

uhp s oky s H k kx e s a j kepUn z th dk tUe g qvk Fk k vkSj ;gh

vkLFkk o fo'okl esjk Hkh gSa Jh jketUe Hkwfe LFky jkepUnz th ds le;

ls iwT; gS vkSj cjkcj iwftr gksrh pyh vk jgh gSA eSa fookfnr ifjlj

ds iwohZ eq[; }kj ls gksdj vanj n'kZu djus tkrk FkkA tUeHkwfe dk

n'kZu djus ds mijkUr tc ckgj fudyrs Fks rks nf{k.k dh vksj ls ?kwe

dj ifjdzek djrs FksA** ¼ist 22&23½

"The tradition, faith and belief of Hindus has been

continuing that Ramchandra was born beneath the

middle dome of the domed disputed structure and I also

have the same faith and belief. The Sri Ramjanmbhumi site

is reverable since the times of Ramchandra and has been

continuously worshiped. I used to go through the eastern

main gate of the disputed structure to have darshan. On

coming out after having darshan, (I) used to

circumambulate by turning southwards." (E.T.C)

^^lu~ 1934 esa tc eSa v;ks/;k x;k Fkk] rks ml le; esjh vk;q

yxHkx X;kjg&ckjg o"kZ FkhA eq>s ;kn ugha gS fd eSa lu~ 1934 esa

2121

v;ks/;k x;k ;k ughaA** ¼ist 27½

"In the year 1934, when I had gone to Ayodhya, at that

time I was aged around 11-12 years. I do not remember

whether I had gone to Ayodhya in the year 1934, or not."

(E.T.C)

^^eq>s yksxksa us ;g crk;k Fkk fd lu~ 1934 ds naxs esa fookfnr Hkou

dk ,d f'k[kj VwVk FkkA fookfnr Hkou dk f'k[kj ds vykok vU; dksbZ

Hkkx lu~ 1934 ds cycs esa ugha VwVk FkkA - - - - - lu~ 1934 ds cyos ds

iUnzg&lksyg lky ckn bu yksxksa us fookfnr f'k[kj ds VwVus ds ckcr

crk;k FkkA - - - - - lu~ 1934 ds yxHkx pkSgn lky ckn eSa v;ks/;k

x;kA bl pkSng o"kksZa ds nkSjku Hkh eSa ,d nks ckj v;ks/;k x;k gwWaA - - -

- -lu~ 1934 vkSj lu~ 1948 ds nkSjku tc eSa ,d nks ckj v;ks/;k x;k

Fkk] rks eSa cM+k LFkku v;ks/;k esa Bgjk FkkA ml le; eSa cM+s LFkku ds

egar dk f'k"; ugha gqvk FkkA** ¼ist 28½

"I was told by people that in the riot of the year 1934, a

dome of the disputed structure had fallen down. Apart from

the dome of the disputed structure, no other part was

damaged in the riot of the year 1934. . . . . . .About 15-16

years after the riot of the year 1934, these persons had told

about the damage to the disputed dome. . . . . . .I went to

Ayodhya about 14 years after the year 1934. In the period

of 14 years as well, I had been to Ayodhya on couple of

occasions.. . . . . . .When I went to Ayodhya on couple of

occasions between the year 1934 to 1948, I had stayed at

'Bada Sthan', Ayodhya. At that time, I had not become the

disciple of the Mahant of 'Bada Sthan'." (E.T.C)

^^eSa fuf'pr #i ls ;g ugha crk ldrk fd eSa lu~ 1934 vkSj

1948 ds chp esa v;ks/;k fdruh ckj x;k FkkA eq>s ;kn ugha gS fd lu~

1934 ,oa lu~ 1948 ds chp esa tc eSa v;ks/;k x;k] ml le; esjh vk;q

D;k FkhA tc eSa vius firkth ds lkFk x;k FkkA eq>s ;g ;kn ugha gS fd

lu~ 1934 ds ckn igyh ckj eSa v;ks/;k dc x;k Fkk ijUrq tc eSa lu~

2122

1934 ds ckn igyh ckj tc eSa v;ks/;k x;k Fkk] rks rhu pkj fnu jgk

FkkA** ¼ist 29½

"I cannot definitely tell as to on how many occasions had I

gone to Ayodhya between the years 1934 to 1948. I do not

remember as to what was my age, when I visited Ayodhya

between the years 1934 to 1948. When I had gone along

with my father. I do not remember as to when did I first go

to Ayodhya after the year 1934, but when I first went to

Ayodhya after the year 1934, I stayed for 3-4 days."

(E.T.C)

^^fookfnr Hkou esa ewfrZ lu~ 1949 ds igys ls gh FkhA** ¼ist 31½

"The idol existed in the disputed structure from before the

year 1949." (E.T.C)

^^lu~ 1949 ds ckn fookfnr Hkou ls lacaf/kr dksbZ ?kVuk ugha

gqbZA** ¼ist 36½

"After the year 1949, no incident occurred regarding the

disputed structure." (E.T.C)

^^eSaus v;ks/;k esa LFkk;h fuokl lu~ 1948 ls izkjEHk fd;k FkkA**

¼ist 37½

"I started living permanently in Ayodhya from the year

1948." (E.T.C)

^^lu~ 1948 ds ckn esjs firk th dHkh v;ks/;k ugha x,A esjs

firkth dk nsgkolku lu~ 1947&48 esa gqvk FkkA esjh ekrk th dk nsgkUr

lu~ 1947 esa gqvk FkkA**

"After the year 1948, my father never visited Ayodhya. My

father expired in the year 1947-48. My mother expired in

the year 1947." (E.T.C)

2055. Contrary to the stand of Nirmohi Akhara, on page 75

he admits the construction of Babar of the disputed building:

^^fookfnr Hkou ftls 6 fnlEcj lu~ 1992 dks fxjk;k x;k]

ckcj }kjk lhrk&ikd dh 'kDy e sa cuk;k x;k Fk k ] efLtn

2123

dh 'kDy esa ughaA - - - - - - - fook fnr Hkou e sa vdcj d s le;

e s a e qlyekuk s a dk s t qek dh uekt + i< +u s dh btkt +r Fk h

vk S j ckdh le; e sa fgUn qvk s a dk s i wtk vp Zuk dh btkt +r

Fk hA lkfgR; ;k bfrgkl esa bl ckr dk irk ugha pyrk gS fd ckcj ls

vdcj ds chp esa fookfnr Hkou ds vanj eqlyekuksa }kjk uekt i<+h

tkrh Fkh ;k ugha ;k jke dh iwtk&vpZuk gksrh Fkh ;k ughaA tgkWa rd

esjh tkudkjh gS vkSj tSlk eq>s crk;k x;k gS] fook fnr Hkou e s a lu ~

1934 d s n ax s d s ckn dHk h uekt + ugh a g qb Z ] cfYd mlds ckn

ls ogka iwtk vpZuk cjkcj gksrh jghA tks esjh tkudkjh gS vkSj tks

tuJqfr ij vk/kkfjr gS] vdcj ds le; ls lu~ 1934 rd fookfnr

Hkou esa tqes dh uekt+ gksrh FkhA ckdh fnu uekt+ ugha i<+h tkrh FkhA**

¼ist 75½

"The disputed structure, which was demolished on 6th

December, 1992, was built by Babar in the shape of 'Sita

Pak', (and) not in shape of mosque. . . . . . . . In the period

of Akbar, Muslims had the permission to offer Jumma

namaz in the disputed structure and for the remaining

period, Hindus were permitted to carry out prayer-

worship. It is not found in literature or history as to

whether in the period between Babar to Akbar, namaz was

offered by Muslims in the disputed structure or not, or

whether the prayer-worship of Lord Rama was carried out

or not. To the best of my knowledge and as told to me,

namaz was never offered in the disputed structure after

the riot of the year 1934 and instead prayer-worship was

regularly carried out over there in the later days. As per

my knowledge, which is based on hearsay, the Jumma

namaz was offered at the disputed structure from the times

of Akbar till the year 1934. Namaz was not offered on other

days." (E.T.C)

^^fookfnr LFky ifjlj dks lhrk ikd ds uke ls ckcj }kjk

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efUnj rk sM +dj cuok;k x;k Fk k ] efLtn ugha vkSj rHkh ls bls

lhrk ikd vkSj jketUeHkwfe ds uke ls tkurs gSaA** ¼ist 96½-

"The site of the disputed structure was built by Babar

under the name 'Sita Pak', (it was) not a mosque and

since then it is known as 'Sita Pak' and Ramjanmbhumi."

(E.T.C)

^^fookfnr LFky ij gh lhrk ikd 'kCn fy[ks gq, Fks] ijUrq ckcjh

lhrk ikd ;kuh ckcj ds uke ds lanHkZ esa ugha vkSj u gh ckcj ds uke

ls FkkA Lo;a dgk fd fookfnr Hkou ij jkepUnz th dk rkjd ;U= dk

"kVdks.k ;U= cuk gqvk FkkA Lo;a dgk fd ckcj us fookfnr Hkou ij

lhrk ikd blfy, fy[kok;k Fkk] D;ksafd tc&tc ckcj us efLtn

cuokus dk iz;kl fd;k] mlesa foQy jgk] guqeku th Hkou dks fxjk nsrs

Fks] rc lk/kw lUrksa dh jk; ds eqrkfcd ckcj us ml ij lhrk ikd

fy[kok;k vkSj ehukjksa dks fxjok fn;k rFkk vkns'k fn;k fd eqlyeku

flQZ tqes dh uekt+ i<+sxsa] ckdh fnu nso iwtk] _f"k ikB lc gksxkA**

¼ist 96&97½

"The words 'Sita Pak' were inscribed at the disputed site

itself, however, (it) was neither in reference to 'Babri Sita

Pak' i.e. name of Babar nor with the name of Babar. Stated

on his own that Lord Ramchandra's 'Shatkon Yantra' of

'Tarak Yantra' were there at the disputed structure. Stated

on his own that Babar had got 'Sita Pak' inscribed at the

disputed structure in view of the fact that whenever Babar

attempted to build the mosque, he remained unsuccessful,

(as) Hanuman Ji used to demolish the building, and then as

per the advice of saints-sages, Babar got 'Sita Pak'

inscribed over it and dismantled the minarets and ordered

that Muslims would offer only the Jumma namaz and on the

remaining days 'Dev Puja' (worship of deities), 'Rishi Path'

(orations by sages) would all take place." (E.T.C)

2056. After long drawn cross-examination ultimately when

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he found several mistakes in his affidavit, said on page 169:

^ ^' kiFk i= ij nLr[kr djr s le; e S au s ml s ugh a

i< +k Fk kA eSaus bl 'kiFk i= dks U;k;ky; d{k esa vkus ds ckn

U;k;ky; d{k esa i<+k FkkA**

"I had not read the affidavit at time of signing it. I

had read this affidavit after entering the Court room, in the

Court room." (E.T.C)

2057. DW 3/8, Pt. Shyam Sunder Mishra born in 1914, has

claimed to visit the disputed premises and worship Lord Rama

inside the disputed building from the age of 14 years. However,

on page 119 he says that the disputed building was attached on

23.12.1949 and this was told to him by Baldev Das and Bhaskar

Das when he visited the premises for Darshan.

^^23 fnlEcj 1949 ds izkr%dky cYnso nkl rFkk Hkk"dj nkl us

fookfnr Hkou ds dqdZ gksus dh ckr eq>s crk;k FkkA tc eSa lqcg n'kZu

djus x;k rks cYnso nkl rFkk Hkk"dj nkl us dqdhZ gksus ds laca/k esa eq>s

crk;k FkkA - - - - - 23 fnlEcj 1949 dh lqcg ls dksbZ Hkh O;fDr

vUnj n'kZu djus ugha tk ldrk Fkk] ckgj ls gh yksx n'kZu djrs FksA

n'kZu yksx jkeyyk dh ewfrZ dk djrs FksA**

"In the morning of 23rd December, 1949 Baldev Das

and Bhaskar Das had told me about attachment of the

disputed structure. When I had gone in the morning to have

darshan, Baldev Das and Bhasker Das had told me about

the attachment. . . . . . From the morning of 23rd December,

1949 no person could go inside to have darshan, (and)

people used to have darshan from outside. People used to

have darshan of the idol of Ramlala." (E.T.C)

2058. About his belief he said:

^^fookfnr LFky ij 'kq: ls gh jke tUe Hkwfe ds :i esa iwtk

gksrh jgh gSA 'kq: ls esjk rkRi;Z ;g gS fd tc eSa 14 lky dh mez ls

ogkWa vkus yxk rc ls eSaus mls jke tUe Hkwfe ds :i esa ns[kk gSA viu s

2126

gk s' k e s a vku s vFk k Zr 14 lky dh me z d s igy s fook fnr

LFky ij i wtk gk su s vFkok u gk s su s d s ckj s e s a e q> s dk sb Z

tkudkjh ugh a g SA fook fnr LFky ij Jh jke pUn z th i Snk

g q, Fk sA eSa ;g ugha crk ikÅWaxk fd jke pUnz th vkt ls fdrus lky

igys iSnk gq,A**

"The disputed structure has been worshiped as

Ramjanmbhumi from the very beginning. By 'very

beginning', I mean that since I started coming there from

the age of 14 years, I have seen it as Ramjanmbhumi. I

have no knowledge about observance or non-observance

of worship at the disputed site, prior to my attainment of

maturity i.e. before the age of 14 years. Lord Shri

Ramchandra was born at the disputed site. I will not be

able to tell as to how many years ago, was Lord

Ramchandra born." (E.T.C)

2059. DW 3/9, Ram Ashrey Yadav is 72 years of age, which

brings his year of birth to about 1932. He claims to have visited

the disputed place at the age of 12-14 or 15 years. Interestingly

about his affidavit he say:

^^eSaus vkt bl U;k;ky; esa 'kiFk&i= nkf[ky fd;k gSA e S a Lo; a

;g ugh a i< + ik;k fd e sj s }kjk nk f[ky bl 'kiFk&i= e s a

D;k fy[k k g SA bl 'kiFk&i= dks eqa'kh th us eq>s i<+dj lquk;k Fkk]

ijUrq eaq'kh th dk uke eq>s ugha ekywe gSA eSaus vius 'kiFk i= esa] lquus

ds ckn dsoy nLr[kr dj fn;s Fks] ijUrq mle sa D;k fy[k k g S ] ;g

e q> s ugh a eky weA ;g 'kiFk&i= rhu ;k pkj iUus dk FkkA** ¼ist 6½

“Today, I have filed an affidavit in this Court. I was

not able to read on my own as to what was written in the

affidavit filed by me. This affidavit was read out to me by

the 'Munshi' (advocate clerk), but I do not remember his

name. I had only put my signature on the affidavit after

hearing the same, but I do not know about its contents.

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This affidavit ran into three or four pages." (E.T.C.)

2060. Then on page 8 he says:

^ ^e S au s vHk h rd tk s lokyk s d s tokc fn; s g S a] og

lgh Hk h gk s ldr s g S a vk S j xyr Hk hA tk s pht + ge s a ugh a

;kn g S ] mld s ckj s e s a loky dk tokc xyr Hk h gk s ldrk

g SA bl le; gekjk CyMisz'kj gkbZ gS] bl dkj.k gekjk fnekx Bhd

ugh a g SA eSa QStkckn esa 7&8 cts lqcg xkM+h esa cSBk Fkk] rc eSa Bhd

FkkA jkLrs esa esjh rfc;r [kjkc yxus yxh vkSj ckjkcadh igqaprs&igqaprs

esjk CyMizs'kj c<+k yxus yxkA bl le; esjh rfc;r [kjkc yx jgh gS

vkSj e sj k fnekx dke ugh a dj jgk g S vkSj eSa pkgrk gwa fd vkt

ds ctk; esjk vU; fnu c;ku fy[k fy;k tk;sA** ¼ist 8½

“All my answers till now, may be right or wrong.

My answer can be wrong as regards the facts I do not

remember. Presently I have high blood pressure, as such

my mind is not functioning properly. I was alright when I

took the train at 7-8 AM at Faizabad. My health started

deteriorating on the way and my blood pressure increased

by the time I reached Barabanki. At present I am not

feeling well and my mind is not working properly and I

want that instead of today, my statement be recorded on

some other day.” (E.T.C.)

2061. On his request the cross-examination was adjourned

but on the next day also when he found difficulty in replying the

cross-examination claiming his bad health he says:

^^vkt Hk h e sj k LokLFk Bhd ugh a g SA rFkk vkt Hkh eq>s

gkbZ CyM izs'kj gSA** ¼ist 11½

“My health is not good even today and I have high

blood pressure today as well.” (E.T.C.)

2062. Further on page 18 he said about his bad health:

^^vkt Hk h e sj h rfc;r Bhd ugh a g SA ** ¼ist 18½

“Today also I am not well.” (E.T.C.)

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2063. Then he took the plea of weak memory.

^ ^e sj k fnekx 8&10 ekg d s Bhd l s dke ugh a dj jgk

g SA e sj h ;kn ~nk'r detk sj gk s x;h g SA vkt ds c;ku esa /kuir

;kno dh eR;q 2&3 o"kZ iwoZ gksuk eSaus blfy, crk;k gS D;ksafd fnekx

dh detk sj h d s dkj.k ] og Bhd l s dke ugh a dj jgk g SA * *

¼ist 27½

“My brain has not been working properly for 8-10

months. My memory has weakened. In my statement of

the day, I have stated the death of Dhanpat Yadav to have

occurred 2-3 years ago, due to weakness of my brain,

which is not working properly on that account.” (E.T.C.)

^^lk{kh dks mlds 'kiFk i= dh /kkjk 10 dks i<+dj lquk;k x;kA

bl /k kj k e sa fy[k h ckrk s a dk s e S au s fy[kok;k Fk k ;k ugh a]

e q> s ;kn ugh a g SA - - - - - - - - - bl /kkjk dh nwljh o rhljh ykbu

esa eSaus ;g fy[kk gS fd ^^22&23 fnlEcj dks xHkZxg ds Hkkx esa ewfrZ

j[kuk ,dne xyr ckr gS**] ;g ckr 1949 dh ?kVuk ls lacaf/kr gS

vFkok ugha] ;g eq>s ;kn ugha gSA blh /kkjk esa eSaus ;g Hkh fy[kk gS fd

^^ dqN eqdkeh eqlyekuksa us - - - -QthZ dk;Zokgh djk fn;kA** ;g QthZ

dk;Zokgh fdl laca/k esa Fkh] ;g eq>s ;kn ugha gSA Lo; a dgk ftl

Qth Z dk; Zokgh dk e S au s mYy s[ k fd;k g S ] og lu ~ 1934 dh

?kVuk l s l ac af / kr g S vFkok ugh a] ;g e S a ugh a crk ldrkA^ *

¼ist 31&32½

“The paragraph 10 of his affidavit, was read out to

the witness. I do not recollect whether the facts

mentioned in this paragraph, had been got incorporated

by me or not.. . . .. .. . In second and third line of this

paragraph, I have mentioned that 'the placement of idols in

the 'Garbh-grih' portion on 22-23 December, is totally

wrong'. I do not remember whether this fact is related to

the incident of 1949 or not. In this very paragraph, I have

also mentioned that 'few local Muslims. . . . . . . . . .got the

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forged action taken'. I do not recollect as to in which

behalf, was this forged action. Stated on his own that I

can not tell whether the forged action mentioned by me

was related to the incident of year 1934 or not.” (E.T.C.)

^bl le; e sj k fnekx dke ugh a dj jgk g SA * * ¼ist 33½

“My brain is not working presently.” (E.T.C.)

^^tk s e S a vkt c;ku n s jgk g wW a] mldk fcLej.k nk s ? k.V s

ckn gk s tk; sx kA tc eSa c;ku nsrk gwWa rks tks eq>s Lej.k jgrk gS] eSa

crkrk gwWaA e sj h Lej.k 'k fDr detk sj gk s x;h g S ] vr,o bl

laca/k esa eSa D;k dj ldrk gwWaA eSa ;g crk pqdk gwWa fd esjh Lej.k 'kfDr

detksj gS] vr% eSa rF;ksa dks Hkwy tkrk gwWa rFkk ifjokj ds lnL; dks Hkh

dHkh&dHkh ugha igpkurk gwWaA e sj s vUnj ;g {kerk ugh a g S fd e S a

rF;k s a dk s dgu s d s igy s ;g lq fuf'pr dj y wW a fd crk; s

x; s rF; lgh a g SA * * ¼ist 51&52½

“The statement being given by me today, will be

forgotten after two hours. Whenever I give statement, I

tell whatever I remember. My memory has become weak,

and I can do nothing in this behalf. I have told that my

memory has become weak, as such I forget the facts and

sometimes fail to recognise even the family members. I do

not have the capacity to ensure before stating that the

facts are correct.” (E.T.C.)

2064. DW 3/11, Shri Bhanu Pratap Singh is also a resident

of Village Haliyapur, district Sultanpur and is aged about 70

years in April 2004, meaning thereby his year of birth comes to

1934. He claims to have visited Ayodhya before 1949 and that

the idols were kept inside the building in the inner courtyard

prior to 1949. The idols of Bhagwan Ram Lala and others were

also there on Ram Chabutara. He visited the disputed building

for about 40-50 times upto 1949. The distance of his village

2130

from Ayodhya is 54 Kms. On page 29 he virtually admits of

having given his wrong age as is evident from the following:

^^esjh tUe frfFk gkbZLdwy izek.k&i= esa 1 tqykbZ 1936 fy[kh gqbZ

gSA** ¼ist 29½

“My date of birth is mentioned as 1st July, 1936 in

the High School certificate.” (E.T.C)

2065. His father expired in 1945 as said by him on page 30.

He used to visit Ayodhya with his grandfather. There are several

contradictions in his statements but for us suffice to mention

about his admission regarding weak memory.

^^rks D;k eSa ;g le>wWa fd vkidh Lej.k 'kfDr bruh {kh.k gks xbZ

gS fd vki ikWap feuV esa ckr Hkwy tkrs gSa vkSj fQj ikWap feuV ckn

vkidks ;kn vk tkrh gS\

m0& e sj h Lej.k 'k fDr dqN det +k sj g SA * * ¼ist 46½

“Should I consider that your memory is so weak that

you forget facts within five minutes and then you recollect

after five minutes?

Answer:- My memory is a bit weak.” (E.T.C)

^^esjs mi;qZDr c;ku dk va'k ^^pkjksa rjQ+ eafnj gSa** x+yr gS]

D;ksafd eafnj ek= nks gh rjQ+ FksA - - - - -bl laca/k esa eSa x+yr c;ku

nsus dk dksbZ dkj.k ugha crk ldrk] e S a d qN rF;k s a dk s H k wy tkrk

g wW a] ftlds dkj.k bl izdkj ds c;ku ns fn;s tkrs gSaA Hkwyus dk rkRi;Z

;g gS fd os rF; ml le; eq>s ;kn ugha jgrs gSaA** ¼ist 105½

“The portion ‘temples all around’ of my above

statement, is wrong because temples were only on two

sides. . . . .In this behalf, I cannot give any reason for

making wrong statement. I forget few facts due to which

such statements are made. By forgetting, I mean that I do

not remember those facts at that time.” (E.T.C)

^^fnukad 29-4-2004 ds i"B 20 ij vfHkfyf[kr c;ku dk va”k

^^eSaus rhu xqEcn ugha ns[ks Fks] rhu f'k[kj ns[ks Fks] xqEcn rFkk f'k[kj ,d

2131

gh ugha gksrk gS** x+yr gks ldrk gS] xqEcn rFkk f'k[kj ,d gh gksrk gSA

c;ku dh bl x+yrh dk dksbZ dkj.k ugha crk ldrkA - - - - -dHkh&dHkh

H k wy tku s d s dkj.k e q>l s x +yrh gk s tkrhg SA * * ¼ist 106½

“The portion ‘I had not seen the three domes, had

seen the three vertexes, dome and vertex are not same’ of

my statement dated 29.04.2004 at page 20, may be wrong.

Dome and vertex are same. I cannot give any reason for

this mistake in the statement....... Sometimes such mistakes

creep in on account of loss of memory” (E.T.C)

2066. DW 3/12, Ram Akshyawar Pandey:

^^eSaus jketUeHkwfe eafnj ds pkjksa rjQ ifjdzek ugha fd;k gSA

jkepcwrjs dh ifjdzek fd;k gSA** ¼ist 17½

“I have not performed circumambulation of the

Ramjanmbhumi temple. I have performed the

circumambulation of Ramchabutara." (E.T.C.)

**ogka ij fLFkr eafnj tgka ij jkeyyk fojkteku Fks] ogka ij

rhu xqEcn FksA jke pcwrjk ls jkeyyk eafnj rd dh vanj ls pkSM+kbZ

yxHkx 60 gkFk dh FkhA^* ¼ist 25½

“The temple, where Ramlala was present, had three

domes. The inside width from Ramchabutara to Ramlala

temple was about 60 yards.” (E.T.C.)

**;g dguk xyr gS fd fnukad&23-12-1949 dh jkr esa ewfrZ;ka

j[kh xbZ FkhaA- - - - - -esjs xkao okyks us eq>ls bl laca/k esa crk;k Fkk fd

jketUeHkwfe ftlesa jkeyyk cSBs gS] iqjkuk Fkk] og fxj x;kA**

¼ist 27&28½

“It is wrong to say that the idols had been placed in

the night of 23-12-1949. . . . . . . . The villagers of my

village had told me in this behalf that the Ramjanmbhumi,

in which Ramlala was present, had collapsed as it was

old.” (E.T.C.)

^^bl le; esjs flj esa cgqr rst nnZ rFkk vka[ks yky gSa] blfy, eSa Bhd

2132

ls ugha ns[k ik jgk gwWa vkSj ugha crk ikmxk fd lqUnjdk.M es fdrus

nksgs o fdruh pkSikbZ;ka gSaA** ¼ist 39½

“I have severe headache and my eyes are infected,

hence I am not able to see properly and as such I will not

be able to give the number of ‘Doha’ and ‘Chaupai’ in the

‘Sundar Kand’.” (E.T.C.)

^^D;ksfd esjs flj esa nnZ gS vkSj esjh vka[ks nnZ dj jgh gSaA - - - -

- vkt eSa bldk vFkZ ugha crk ikÅWxk] D;ksafd esjk flj nnZ dj jgk gSA

- - - -og nn Z d s dkj.k H k wy tk jgk g wW aA * * ¼ist 40½

“Because I have headache and also have pain in my

eyes. . . . . . I will not be able to give its meaning today

because of headache.. . . . . . My memory is failing

because of the pain.” (E.T.C.)

^^fookfnr Hkou] ftlesa rhu xqEcn Fks] mldks fdlus vkSj dc

cuk;k Fkk] blds ckjs esa eSaus u rks dgha lquk vkSj u i<+kA** ¼ist 42½

“I have nowhere read or heard as to who

constructed the disputed structure with three domes, and

when.” (E.T.C.)

^^bl lEcU/k e sa e S au s ;g lquk g S fd ;g LFk ku jkepUn z

th dk tUeLFk ku g SA Hkxoku jke dk tUe rhu xqEcn okys Hkou ds

chp okys xqEcn ds uhps okys LFkku ij gqvk FkkA** ¼ist 44½

“I have so heard that this place is the birthplace of

Lord Rama. Lord Rama was born at the place below the

mid dome of the three dome structure.” (E.T.C.)

^ ^tc e S a viu s ckck d s lkFk vk f[kjh ckj v;k s/;k

x;k Fk k ] rc e sj h vk; q 12 o" k Z dh Fk hA tc e S a viu s ckck

d s lkFk igyh ckj v;k s/;k x;k Fk k ] rc e sj h vk; q D;k Fk h ]

;g e S a ugh a crk ldrk ] D;ksafd ml le; eSa cgqr NksVk FkkA**

¼ist 48½

“When I last visited Ayodhya along with my

grandfather, I was aged 12 years. I do not remember my

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age at the time when I first visited Ayodhya, since I was

quite young at that time.” (E.T.C.)

^^iz’u& rks D;k vkidh ;knnk’r bruh detksj gS fd vki FkksM+h

nsj igys dgh x;h ckr Hkwy tkrs gSa\

mRrj& esjh ;knnk’r detksj ugha gS] ijUrq flj esa nnZ gksus ds

dkj.k dHkh&dHkh fnekx esa pDdj vk tkrk gSA** ¼ist 54½

“Question:- Is your memory so weak that you are

unable to recollect what you have stated sometime back?

Answer:- My memory is not weak, but on account of

headache, sometimes there is dizziness.” (E.T.C.)

^^eSa ;g ugha crk ldrk fd tc eSa vius ckck ds lkFk igyh ckj

v;ks/;k x;k Fkk] ml le; esjh vk;q 9 o"kZ dh Fkh vFkok ughaA ------

iafMr yksxksa us eq>s ;g crk;k fd bl le; esjh mez 70 o"kZ dh gks pqdh

gSA - - - - -eSa dHkh Ldwy esa i<+us ugha x;kA ,d VsEisjsjh Ldwy [kqyk Fkk]

ftlesa eSa i<+us x;k ogka ij eSaus rhljs pkSFks ntsZ rd f’k{kk ikbZA**

¼ist 59½

“I can not tell whether I was aged nine years or not,

when I first went to Ayodhya along with my

grandfather. ........The priests told me that I am aged 70

years now. ....... I never went to school. A temporary school

had been established and I received education there upto

Class III-IV.” (E.T.C.)

^ ^, slk i zrhr gk sr k g S fd e S a c;ku n sr s le; Hk wy x;k

Fk kA* * ¼ist 69½

“It appears that I had forgotten at the time of my

statement.” (E.T.C.)

^ ^vkt c;ku n sr s le; e sj k fnekx lgh ugh a Fk kA ^ *

¼ist 78½

“I was not in my senses during my deposition of

the day.” (E.T.C.)

2067. The above extract is self evident to make this witness

2134

unreliable.

2068. DW 3/13, Mahant Ram Subhag Das Shastri, aged

about 86 years in 2004 meaning thereby his year of birth comes

to 1918, came to Ayodhya in 1933 and since then is

continuously visiting Ram Janam Bhumi Temple. He has

confirmed existence of Ram Chabutara, Chhati Pujan Sthal,

Charan Chinh, Chakla and Belan as well as Bhandara in the

outer courtyard of the site in dispute. He says that various idols

of Lord Rama, Lakshmanji etc. were present on Ram Chabutara

as well as Garbhgrih when he used to visit Ram Janam Bhumi

Temple for Darshan and worship of Lord Ramlala. The incident

of 23rd December, 1949, he claims to be a fictitious one and says

that the entire disputed building was in possession of Nirmohi

Akhara who were managing and serving. It was a temple of

Nirmohi Akhara and Math. He also deny that any Namaj was

offered in the entire building in dispute. Three documents he has

annexed alongwith his affidavit to show that he had to sign a

bond alongwith Baba Abhiram Das, Baba Brindaban Das, Baba

Ram Vilas Das, Naga Sudarshan Das and Ram Shatrudhan since

proceedings were initiated against them under Section 295/448

after the incident of 23rd December, 1949. However, in cross-

examination the witness gave contradictory statement to the

stand of the plaintiffs (Suit-3), as is evident from the following:

^^lu~ 1934 ds vizSy ekg esa v;ks/;k esa >xM+k gqvk FkkA bl

>xM+s ds ckn v;ks/;k esa jgus okyksa ij VSDl yxk FkkA Lo;a dgk fd

xksdq’kh gks x;h Fkh ftlesa dqN eqlyeku ekjs x;s Fks] mlds ckn

jketUeHkwfe ds Åij tks <kapk Fkk mldks fgUnw yksx fxjkus yxs] ml

le; vaxzstksa dk jkT; Fkk] QkSt us vkdj HkhM+ dks frrj&fcrj dj

fn;k] mlds ckn gh fgUnqvksa ij tqekZuk yxk;k x;k FkkA 85 gtkj :i;s

tq+ekZus ds :i esa yxk;s x;sA** ¼ist 15½

“A riot had broken out in Ayodhya in the month of

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April of the year 1934. After this riot, a tax had been

imposed on the residents of Ayodhya. Stated on his own

that cow slaughter had taken place, in which few Muslims

had been killed and thereafter the Hindus started

demolishing the structure standing over Ramjanmbhumi. At

that time there was British rule and the army had come and

scattered the crowd. The fine was imposed on the Hindus

only after that. A sum of Rupees 85 thousand had been

imposed as fine.” (E.T.C)

^^lu~ 1933 ds iwoZ yk sx dgr s Fk s fd ckcjh efLtn g S ]

ijUr q tc e S a mldk Lo#i n s[ krk Fk k rk s yxrk Fk k fd ;g

e afnj g SA * * ¼ist 23½

“Prior to the year 1983, people used to say that (it) was

Babri mosque, but when I used to see, it appeared to be a

temple.” (E.T.C)

^^Lo; a dgk fd bl s e afnj dk s /oLr djd s cuok;k

x;k Fk kA ** ¼ist 23&24½

“Stated on his own that it had been built after

demolishing the temple.” (E.T.C)

^ ^ckcjh efLtn e s a rhu x q Ecn Åij Fk sA ckcjh efLtn

yxHkx ipkl fQ+V yEch rFkk yxHkx mruh gh pkSM+h FkhA Lo;a dgk fd

yEckbZ rFkk pkSM+kbZ yxHkx cjkcj FkhA ;g dguk x+yr gS fd [kkyh

txg ij efLtn cuk;h x;h] cfYd ;g efLtn] e afnj rk sM +dj

cuk;h x;h Fk hA tc ls eSa v;ks/;k x;k gwWa] rc ls ckcjh efLtn esa

uekt+ ugha i<+h x;hA ckcjh efLtn vius LFkku ij ftl izdkj Fkh]

mlh izdkj dk;e jghA - - - - -22@23-12-1949 dh jkr esa fookfnr

Hkou esa dksykgy gqvk] ml jkr esa D;k O;oLFkk gqbZ] ;g eq>s irk ugha]

ijUrq bruk fofnr g qvk fd uohu e wfr Z c SBk nh x;hA* *

¼ist 24½

“There were three domes on top of the Babri

mosque. Babri mosque was about fifty feet long and

2136

equally wide. Stated on his own that length and breadth

were almost similar. It is wrong to say that mosque was

built at vacant place , and instead this mosque was built

after demolishing the temple. Since I have been to

Ayodhya, namaz has not been offered in the Babri mosque.

Babri mosque as it was stood at this place.. . . . . . .. There

was disturbance in the night of 22/23.12.1949 in the

disputed structure, but I do not know as to what

arrangements were made in that night. However, this

much transpired that new idols had been

installed.”(E.T.C)

^^ckcj }kjk fufeZr Hkou 500 lky iqjkuk gksxkA Lo;a dgk fd

ftl le; ckcj Fks] mlh le; ;g Hkou cukA ftl le; ckcj us ;g

Hkou cuok;k] mldks yksx efLtn ds :i esa cukuk crkrs gSa] ijUrq Hkou

dks ns[kus ls ;g Hkou] eafnj ekywe nsrk FkkA ftl #i e sa ckcj u s

fook fnr Hkou cuok;k Fk k ] mlh #i e s a og Hkou lu ~ 1992

rd pyk vk;kA* * ¼ist 35½

“The structure built by Babar would be 500 years

old. Stated on his own that this structure was build in the

period in which Babar existed. At the time when Babar

built this structure, it is said by people that he built as a

mosque, but on looking at the structure, it appeared to be

a temple. The shape in which Babar had built this

structure, continued as such till the year 1992.” (E.T.C)

^^lu~ 1949 dk cyok fookfnr Hkwfe ij gqvk FkkA ;g cyok 23

fnlEcj 1949 dh jkr e s a g qvk Fk k ] bldh tkudkjh nwljs fnu

vFkkZr 24 fnlEcj 1949 dks gqbZA ;g lgh gS fd ;g cyok 22@23

fnlEcj dh e/; jkf= esa gqvk FkkA ;g cyok fook fnr Hkou e sa

e wfr Z j[ku s d s l ac a/ k e s a g qvk Fk kA dksbZ dgrk Fkk fd Hkxoku

Lo;a izdV gks x;s gSa] dksbZ dgrk Fkk fd ewfrZ j[k nh xbZ gSA ml jkr

eSa fookfnr Hkou esa ugha x;k FkkA eSa jkr esa fookfnr Hkou ij ugha x;k

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Fkk] fQj Hkh esjk uke lfEefyr dj fn;k x;kA** ¼ist 41½

“The riot of the year 1949, occurred at the disputed

premises. This riot broke out in the night of 23rd

December, 1949. I came to know about it on the next day

i.e. on 24th December, 1949. It is correct that this riot

broke out in midnight of 22/23 December. This riot had

broken out in respect of installation of idols in the

disputed structure. Some claimed that the deity had

Himself appeared, some said that the idols had been

installed. I had not been to the disputed structure that

night. I had not gone to the disputed structure in the night,

still my name was included.” (E.T.C)

^^eSaus fnukad 7-7-2004 dks i"B 41 ij ;g c;ku fn;k gS fd

22@23 fnlEcj 1949 dks cyok gqvk Fkk] tks fookfnr Hkou esa ewfrZ

j[kus ds laca/k esa Fkk] dksbZ dgrk Fkk fd Hkxoku izdV gks x;s gSa] dksbZ

dgrk Fkk ewfrZ j[k nh x;h gSa esjk ;g c;ku lgh gSA** ¼ist 54½

“On 7.7.2004 at page-41, I have stated that ‘a riot

had broken out in the night of 22/23 December, 1949,

which was in respect of installation of idols in the disputed

structure. Few used to say that the deity had Himself

appeared, few used to say that the idols had been

installed’, this statement of mine is correct.” (E.T.C)

^ ^lu ~ 1934 e sa o S j k fx;k s u s fook fnr Hkou dk s e afnj

le>dj mld s Åij geyk fd;k Fk kA os oSjkxh yksx ml le;

Hkh fookfnr Hkou esa iwtk djus tkrs FksA** ¼ist 98½--

“In the year 1934, the recluses had attacked the disputed

structure, considering it to be temple. At that time also,

the recluses used to go to the disputed structure for

worship.” (E.T.C)

^ ^ckcj u s e afnj d s <k ap s dk s rk sM +dj efLtn cuk;k

Fk k ] ijUrq og iw.kZ #i ls efLtn ugha cuk ik;kA 14 [kaHks bl Hkou esa

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yxs gq, Fks] ftuesa ewfrZ;ka cuh gSa] blfy, og cqr[kkuk gks x;kA**

¼ist 107½

“Babar had built the mosque by demolishing the

structure of temple, but he was unable to make it a mosque

completely. 14 pillars were fixed in this structure, which

had idols engraved over them, and as such it became a

place of idol.” (E.T.C)

2069. He admits weak memory.

^^Lo;a dgk fd voLFk k vf/ kd gk su s d s dkj.k e q> s

foLe ` fr gk s tkrh g SA * * ¼ist 20½

“Stated on his own that on account of advanced

age, my memory fails me.” (E.T.C)

^^;g laHko gS fd lu~ 1933&34 ds ckn dh ckrsa Hkh eq>s foLer

gksuk 'kq: gks xbZ gksa vFkkZr~ lu ~ 1933&34 d s ckn dh ckr s a H k h

e S au s H k wyuk 'k q: dj fn;k g SA * * ¼ist 28½

“It is possible that the post 1933-34 facts are also

fading away from my memory i.e. I have also started

forgetting the post 1933-34 facts.” (E.T.C)

^^;g lgh gS fd c;ku n sr s le; mYVh&i q YVh ckr s a

fudy tkrh g S a rFkk gks ldrk gS fd esjk ;g c;ku fd QStkckn]

v;ks/;k esa 'kkfey gS] xyr gksA** ¼ist 106½

“It is true that I make unnecessary utterances at

time of giving my statement and it is possible that my

statement ‘Faizabad is included in Ayodhya’ may be

wrong.” (E.T.C)

^^e sj k efLr"d b/kj&m/kj gk sr k jgrk g SA * * ¼ist 109½

“My mind tends to lose concentration.” (E.T.C)

2070. His statement about the existence of Chhati Pujan

Sthal, Charan and Ram Chabutara in the outer courtyard of the

disputed building could not be discredited in the cross-

examination where he has categorically and in clear terms,

2139

consistently made similar statement. Then on some occasions he

has also made contradictory statement.

^^22@23 fnlEcj 1949 dh jkr esa fookfnr Hkou esa ftl le;

u¸;j lkgc eftLVsªV Fks] ewfrZ;ka ugha j[kh xbZ] ;s ewfrZ;ka igys ls FkhaA**

¼ist 102½

“These idols were not installed in the disputed

structure in the night of 22/23 December, 1949, when Mr.

Nayyar was the Magistrate, these idols were already in

existence.” (E.T.C)

2071. The statement of DW 3/13 does not support Nirmohi

Akhara, plaintiff (Suit-3). In fact, it is contrary to their

pleadings. It is well settled that evidence which are totally

contrary to the pleadings ought not to be entertained by the

Court. A Division Bench of Patna High Court in Parmeshwari

Devi and others Vs. Khusali Mandal and others, AIR 1957

Patna 482 has observed:

"......evidence at variance with the pleadings is not

permissible and, if adduced, cannot be looked into to

sustain a claim which was never put forward in the

pleadings."

2072. The entire case of Nirmohi Akhara is that there never

existed any mosque and nothing was constructed by Babar or

Mir Baqi at the disputed site which all through was a temple in

the management, control and possession of Nirmohi Akhara and

no riot or disturbance occurred either in 1934 and nothing

happened in the night of 22/23 December, 1959 but the same

stand totally belie by DW 3/13.

2073. DW 3/14, Jagadguru Ramanandacharya Swami

Haryacharya. He is the head of Ramanandi Sampraday since

1985-86. His statement is not relevant as to whether the idols

were already existing prior to December 1949 inside the

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disputed building but he in general gave history about the birth

of Lord Rama. He has explained the concept of Panchkoshi

Parikrama on page 64 as under:

^^egkjktk n'kjFk ds jktegy dk {ks=Qy tSlk fd okYehfd

jkek;.k esa mfYyf[kr gS] v;ks/;k ds ikap dksl ds vUrxZr fLFkr gSA ;g

ikap & dksl iapdkslh ifjdzek ds vUrxZr gS] n'kjFk ds jktegy dh gh

ifjdzek gksrh gSA tgkWa ls iapdkslh 'kq: gksrh gS] ogkWa ls egjktk n'kjFk

dk jktegy 'kq: gksrk Fkk rFkk tgkWa ij iapdkslh ifjdzek lekIr gksrh

gS ogkWa ij lekIr gksrk FkkA** ¼ist 64½

“The area of King Dashrath's palace as mentioned in

the Valmiki Ramayana, is located within 5 kosas (unit of

distance) of Ayodhya. This distance of five kosas is within

the panchkosi prikrama, which is only the

circumambulation of Dashrath's palace. The panchkoshi

starts from the place from where the palace of King

Dashrath started and the panchkoshi circumambulation

terminates at the place where it (the palace) ended.”

(E.T.C.)

2074. Similarly on page 67 he explained 84 Koshi Parikrama

observing that it encompasses the then entire Ayodhya. On page

118, 120, 127 and 128 however he said:

^ ^bl i zdkj fook fnr Hkou d s vUnj lhf< +; k s a ij

jkeyyk th dh e wfr Z dk s j[k s g q, e S au s lu ~ 1946&47 e s a

n s[ k k Fk k * * ¼ist 118½

“I saw the idol of Ramlala installed inside the

disputed structure on the stairs, in the year 1946-

47.”(E.T.C.)

^^tc eSaus igyh ckj 15 fQ+V dh nwjh ls ewfrZ dk n'kZu fd;k Fkk]

rc eSaus xqEcn ds uhps [kM+s gksdj n'kZu ugha fd;k Fkk] cfYd lgu esa

[kM+s gksdj n’kZu fd;k FkkA** ¼ist 120½

“When I first had ‘Darshan’ (offering worship to the

2141

idol) from a distance of 15 feet, I did not have ‘Darshan’

from under the dome and instead it was done from the

courtyard.” (E.T.C.)

^^dqdhZ ds igys tc eSa n'kZu djus tkrk Fkk] rks lk;adky lk<+s

ikWap cts n’kZu djrk Fkk rFkk n'kZu djds izk;% lkr cts rc okil

vkrkk FkkA tkM+s ds ekSle esa ges'kk va/ksjk gks tkrk FkkA ml le; xqEcn

okys Hkou esa dHkh ykyVsu rFkk dHkh ySEi j[kk jgrk Fkk] ml le; ogkWa

fctyh ugha FkhA eSa lh[k+ps okyh nhokj] ftlesa ,d iz/kku QkVd

rFkk ,d NksVk QkVd Fkk] ls gksdj n’kZu djus tkrk FkkA dHkh&dHkh

cM+k okyk QkVd tc cUn jgrk Fkk rks eSa lh[kps okys QkVd ls pyk

tkrk FkkA** ¼ist 120½

“Prior to the attachment whenever I went for

‘Darshan’, I had ‘Darshan’ at 5.30 PM and usually I

returned by 7’O’ clock. It always turned dark during

winters. Sometimes lantern and sometimes lamp was kept

in the domed building. There was no electricity at that time.

I used to go through the main gate and a small gate in the

grill wall to have ‘Darshan’. Whenever the main gate was

locked, I used to go through the grill gate.” (E.T.C.)

^^esjh eq[; ijh{kk ds 'kiFk&i= dh /kkjk&45 esa 3 fQ+V ÅWaps] 20

fQ+V yEcs rFkk 17 fQ+V pkSM+s pcwrjs dk mYys[k gS] ;g mYys[k jke

pcwrjs ds ckjs esa gSA eSaus vius c;ku es vkt jkepcwrjs dks 40 fQV

yEck rFkk 20 fQ+V pkSM+k crk;k gS] e sj h e q[; ijh{ k k d s 'kiFk&i=

dh /k kj k&45 e sa j ke pc wrj s dh yEckb Z tk s mfYyf[kr g S ]

og lgh ugh a g SA eSaus viuh eq[; ijh{kk ds 'kiFk&i= dh /kkjk &

46 esa ftl NB~Bh iwtu LFky dk mYys[k fd;k gS mlds ckjs esa fooj.k

okYehfd jkek;.k esa ek= NB~Bh iwtu ds :i esa feyrk gS] mlesa NB~Bh

iwtu LFky dk mYys[k ugha gS] jkepfj= ekul es Hkh NBh egksRlo

eukus dk mYys[k gS ijUrq NB~Bh iwtu LFky dk mYys[k ugha gSA

jkepfjr ekul rFkk okYehfd jkek;.k esa ek= NB~Bh dk mYys[k gS]

NB~Bh egksRlo dk mYys[k ugha gSA** ¼ist 127½

2142

“In para 45 of the affidavit of my examination-in-

chief, there is mentioned about a platform 3 feet high, 20

feet long and 17 feet wide. This mention is about

Ramchabutara. In my statement today, I have mentioned

the Ramchabutara to be 40 feet long and 20 feet wide. The

length of Ramchabutara mentioned in para 45 of the

affidavit of my examination-in-chief, is not correct. The

detail about the ‘Chhathi’ (the sixth day after the birth of a

child) worship place mentioned in para 46 of the affidavit

of my examination-in-chief, is found only as ‘Chhathi’

worship in Valmiki Ramayana, but it does not mention

about ‘Chhathi’ worship place. The Ramcharit Manas also

mentions about observance of the function of ‘Chhathi’, but

there is no mention about ‘Chhathi’ worship place. The

Ramcharit Manas and Valmiki Ramayana only mention

about ‘Chhathi’ but there is no mention about the function

of ‘Chhathi’.” (E.T.C.)

^^pj.k fpUg] csyuk] pdyk o pwYgs dk dksbZ mYys[k u rks

jkepfjr ekul esa gS u gh okYehfd jkek;.k esa gSA esjh eq[; ijh{kk ds

'kiFk&i= dh /kkjk&46 esa ftu pj.k fpUgksa dk mYys[k gS] os ik"kk.k ds

FksA bu pj.k fpUgksa dh la[;k 4 FkhA pdyk Hkh ik"kk.k dk Fkk] csyuk Hkh

ik"kk.k dk Fkk] pwYgk gks ldrk gS feV~Vh dk jgk gks D;ksafd bls eSaus nwj

ls ns[kk FkkA ;s lc phtsa 8 x 10 fQV dh ,d csnh ij FkkA csnh dk

rkRi;Z pcwrjs ls gSA ;g pcwrjk pkj vaxqy ÅWpk jgk gksxkA ;g

pc wrj k ftl ij pk Sdk ] c syuk rFk k p wYg k Fk k ] bl s

dk S ' kY;k ikd rFk k lhrk jlk sb Z H k h dgk tkrk Fk kA - - - -

-dk S ' kY;k ikd rFk k dk S ' kY;k jlk sb Z ,d gh pht + g S

viuh&viuh vkLFkk ls yksx mls vyx&vyx iqdkjrs gSa dkS'kY;k jlksbZ

ls rkRi;Z ml jlksbZ ls gS] ftldk iz;ksx dkS'kY;k th djrh FkhA ;g Hkh

laHko gS fd dkS'kY;k jlksbZ dk iz;ksx lhrkth Hkh djrh jgh gksaA eSaus

vius c;ku esa crk;k gS fd jketh rFkk lhrkth vyx egy esa jgrs Fks

2143

rFkk dkS'kY;k th vyx egy esa jgrh FkhaA** ¼ist 127&128½

“Neither in Ramcharit Manas nor in Valmiki

Ramayana, is there any mention about foot sign, ‘Belna’

(traditional utensil used for rolling breads), ‘Chakla’

(traditional utensil used as base for rolling breads) &

stove. The foot signs mention in para 46 of affidavit of my

examination-in-chief were of stone and were four in

number. The ‘Chakla’ and ‘Belna’ were also of stone, but

the stove may have been of earth because I had seen it from

a distance. All these items were on a ‘Vedi’ (platform) of

8x10 feet. Vedi means platform. This platform must have

been four finger tall. The platform over which were these

‘Chauka’, ‘Belna’, stove, was also called Kaushalya Pak

and Sita Rasoi.. . . . . . . . . . . . . Both Kaushalya Pak and

Sita Rasoi are the same thing, and people refer them

differently out of their faith. Kaushalya Rasoi implies that

kitchen which was used by Kaushalya. It is possible that

Kaushalya’s kitchen was used by Sita ji. I have stated in my

statement that Lord Rama and Sita lived in a separate

palace and Kaushalya lived in separate palace.” (E.T.C.)

2075. On page 136 he made a statement contrary to the stand

of Nirmohi Akhara.

^^6 fnlECj lu~ 1992 dks fookfnr Hkou ds fxjus ls mlesa j[kh

ewfrZ;kWa blfy, ugha VwVh D;ksafd jks/kkPNknu ¼iq"V rjhds ls½ ml ij dqN

fxjus ls jksd fn;k x;k FkkA 6 fnlEcj lu ~ 1992 dk s i z kr% dky

tk s e wfr Z;k W a fook fnr Hkou e sa j[k h g qb Z Fk h ] og e wfr Z;k W a

H kou fxju s d s nk S j ku Hk h ogh a j[k h jgh aA vkt Hkh os ewfrZ;kWa

ogha ij j[kha gqbZ gSaA tks flagklu o >wyk fookfnr Hkou ds fxjus ds iwoZ

ogkWa j[ks gq, Fks rFkk ftlesa ewfrZ;kWa j[kh gqbZ Fkha] og flagklu rFkk >wyk

vkt Hkh mlh izdkj j[kk gqvk gSA bl ckjs esa eSaus lquk Fkk D;ksafd 6

fnlEcj 1992 ds ckn eSa ogkWa ij n'kzu djus ugha x;kA ;g ckr eSaus

2144

fookfnr Hkou ds fxjus ds nwljs fnu vkJe esa fo|kfFkZ;ksa rFkk lk/kqvksa ls

lquh FkhA blds ckn Hkh bl laca/k esa eSus lquk FkkA eSaus ;g ckr jkenso

'kkL=h] 'kkf'kdkUr] jkenkl vEcjh"k feJ] deynkl tks vkJe esa jgus

okys fo|kFkhZ rFkk lk/kq gSa] ;s lquh FkhA ;g lHkh yksx vHkh thfor gS

rFkk esjs vkJe esa jgrs gSaA** ¼ist 150½

“The idols present in the disputed structure did not

break down due to collapse of the structure on 6th

December, 1992 because by a protective cover, nothing

was allowed to fall over it. The idols present in the

disputed structure in the morning of 6th December, 1992,

were present at that place even during the collapse of the

structure. Even today the said idols are at that very place.

The throne and swing, in which the idols were placed, were

there in the disputed structure before its collapse and even

today the said throne and swing are kept in the same

manner. I had heard about this, because after 6th

December, 1992 I have not been there to have ‘Darshan’. I

had heard this on the next day of the collapse of the

disputed structure, from students and saints in the Ashram.

I heard about this even subsequently. I had learnt this from

Ramdev Shastri, Shashikant, Ramdas, Ambrish Mishra,

Kamaldas who are students and saints of the Ashram. They

all are alive even today and live in my Ashram.” (E.T.C.)

2076. About observance of Namaz in the disputed building

on page 151 he says:

^ ^v;k s/; k vku s d s i wo Z ;fn ogk W a ij uekt + gk sr h jgh

gk s] rk s bldh tkudkjh e q> s ugh a g SA * * ¼ist 151½

“I have no information if Namaz was offered

there, before I came to Ayodhya.” (E.T.C.)

2077. About the place of dispute he admits that there is no

mention in the plaint.

2145

^^ftl fook fnr LFky rFk k fook fnr Hkou d s ckj s e s a

e S a bl U;k;ky; e s a c;ku n s jgk g wW a] mld s ckj s e s a bl

okn&i= e sa d qN ugh a fy[k k g SA ** ¼ist 168½

“Nothing has been written in this plaint about the

disputed site and the disputed structure regarding which

I am giving statement in this Court.” (E.T.C.)

2078. On page 183 his statement did not rule out placement

of idols inside the disputed building in 1949:

^ ^;g l aH ko g S fd lu~ 1949 dk tk s fookn g qvk rFk k

fook fnr Hkou e sa tk s e wfr Z j[k h x;h mlesa v;ks/;k ds LFkkuh;

fgUnw HkkbZ;ksa dk dksbZ ;ksxnku ugha Fkk cfYd ckgj ds cSjkxh lk/kq yksx

ftEesnkj gSaA** ¼ist 183½

"It is possible that in the dispute that occurred in

1949 and in the incident in which idol had been placed

in the disputed building, the local Hindus of Ayodhya had

no role; rather, outsider ascetic saints were responsible for

the same." (ETC)

2079. It is worthy to mention that on page 159 he has said

that:

^ ^e S a ;g xokgh fuek sZ g h v[k kM +k d s i{k e sa n s jgk

g wW aA * * ¼ist 159½

“I am giving this evidence in favour of Nirmohi

Akhara.” (E.T.C.)

^^mRrj& eSa dsoy ,d gh eqdnesa ^^fueksZgh v[kkM+k cuke fiz;k

nRr** ds eqdnesa esa xokgh ns jgk gwWa] fdlh vU; eqdnes ds ckjs esa xokgh

ugha ns jgk gwWaA** ¼ist 161½

“Answer:- I am giving evidence only in one case viz.

‘Nirmohi Akhara versus Priya Dutt’, and not about any

other case.” (E.T.C.)

2080. DW 3/15, Narendra Bahadur Singh. According to

age he has disclosed, his year of birth comes to 1932 and he

2146

claims to have visited the disputed site at the age of 15 years.

^^eSa 15 o"kZ dh vk;q esa jketUeHkwfe dk n’kZu djus tkus yxk Fkk]

ijUrq blds igys Hkh eSa vius ekrk&firk ds lkFk ;g n’kZu djus tk;k

djrk FkkA** ¼ist 12½

“I had started going to have Darshan of

Ramjanmbhumi at the age of 15 years, but even before that

I used to go to have Darshan there along with my

parents."(E.T.C.)

2081. He is resident of Village Rajapur Saraiya which is

about 35 kms away from Faizabad. On page 27-28 he did not

deny the construction of the building by demolition of the then

temple by Babar.

^ ^e S au s , slk l quk g S fd ckcj u s jketUeHk wf e ij fLFkr

e afnj dk s rk sM +dj dqN efltn dk :i n su s dk i z;Ru

fd;k ] ijUrq vc Hkh lkjs lcwr tUeHkwfe ds ogka ij fo|eku gSaA , slk

l quk tkrk g S fd lu~ 1528 e a s a ckcj u s e afnj dk s

fxjkdj ;g fuek Z . k fd;kA ckcj ds le; esa ehjckdh Fks] ftUgksaus

fuekZ.k laca/kh dqN dk;Z fd;k FkkA eSa ;g lgh :i ls ugha crk ldrk gwWa

fd ;g fuekZ.k&dk;Z lu~ 1528 esa gqvk FkkA ;g dguk xyr gS fd lu~

1528 ds ckn fookfnr Hkou esa cjkcj uekt+ gksrh jgh gksA ehjckdh u s

dk sb Z fuek Z . k ugh a fd;k Fk k ] mlu s d soy rk sM +Q k sM + djd s

d qN ifjor Zu fd;k Fk kA* * ¼ist 27&28½

“I have so heard that after demolishing the temple

existing at the Ramjanmbhumi, Babar attempted to

shape it like a mosque, but even today all the evidences of

Janmbhumi exist there. It is so heard that in the year

1528, Babar had raised this construction after

demolishing the temple. There was one Mir Baqi in the

period of Babar, who had carried out some construction. I

can not tell correctly that this construction was carried out

in the year 1528. It is wrong to say that from the year 1528,

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Namaz was regularly offered at the disputed structure. Mir

Baqi had not carried out any construction, and instead

had only carried out minor modification after

destruction.” (E.T.C.)

2082. About belief he said:

^^esjh ,slh vkLFkk gS rFkk fo’okl Hkh gS fd fookfnr LFky gh

jkepUnz th dh tUeHkwfe gS ijUrq blds ckjs esa /kkfeZd iqLrdksa esa ftudk

eSaus v/;;u fd;k gS] dgha ugha i<+k gSA** ¼ist 34½

“It is my faith as well as belief that the disputed site

is the birth place of Lord Rama, but I have not read so in

the religious books studied by me.” (E.T.C.)

2083. He subsequently admitted to have visited the disputed

place twice before its attachment.

^^nksuksa ckj tc eSa fookfnr Hkou esa dqdhZ ds iwoZ x;k Fkk rks ogka

ij 10&15&30 feuV rd :dk FkkA** ¼ist 40½

“On both the occasions, when I had been to the

disputed structure prior to the attachment, I had stayed

there for 10-15-30 minutes." (E.T.C.)

^^viuh eq[; &ijh{kk ds ’kiFk&i= dh /kkjk & 16 esa ;g dgk gS

fd ^^eSus vius gks’k esa ogka dHkh fdlh eqlyeku dks uekt i<+us ugha

ns[kk gSA** ns[kus dk rkRi;Z ;g gS fd tc e S a ogk a mifLFkr jg wx k ]

rHk h n s[ k wx k aA lu ~ 1950 d s i wo Z fook fnr ifjlj e s a e Su s

rhu ckj tkuk crk;k g SA bUgh a rhu voljk s a d s lEcU/ k e s a

e S au s ;g dgk g S fd * e S au s fdlh e qlyeku dk s uekt i< +r s

ugh a n s[ k k g S *A * * ¼ist 51½

“In para 16 of the affidavit of my examination-in-

chief, (I) have mentioned that ‘in my senses, I have never

seen any Muslim offer Namaz at that place’. By ‘seen’ I

mean that I would see only when I will be present there. I

have stated to have been to the disputed site on three

occasions prior to the year 1950. It is in respect of these

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very three occasions that I have stated that ‘I have not

seen any Muslim offer Namaz’.”(E.T.C.)

2084. DW 3/16, Shiv Bheekh Singh:

^^jketUeHkwfe eafnj] tgkWa ij eSa n’kZu djus tkrk Fkk] ogkWa ij

jke yyk dh ewfrZ fojkteku FkhA -------- ogkWa ij rhu xqQk,a FkhA^^¼ist 8½

“The idol of Ramlala existed in the Ramjanmbhumi

temple, where I used to go to have ‘Darshan’ (offering of

prayer by sight). ...... There were three caves.” (E.T.C.)

^^fookfnr LFky tgkWa ij jkeyyk fojkteku gSa mudks

jketUeHkwfe blfy, dgk tkrk gS D;ksafd ogha ij jkepUnz th dk tUe

gqvk FkkA blfy, ;g LFkku cgqr ifo= ekuk tkrk gSA fgUnqvksa dks ,slk

fo’okl gS fd bl LFk ku d s n’k Zu ek= l s gh ek s{ k dh i z k f Ir

gk sr h g SA - - - - - - - - fookfnr ifjlj ;k jketUeHkwfe esa fdlh

eqlyeku dks vkrs&tkrs ;k uekt i<+rs dHkh ugha ns[kkA** ¼ist 10½

“The disputed site where Ramlala exists, is called

Ramjanmbhumi because Lord Rama was born there. This

is why this place is considered to be very sacred by the

Hindus. It is the belief of Hindus that only by ‘Darshan’ of

this place, ‘Moksha’ (salvation) is obtained. . . . . . . . . . I

never saw any Muslim either visit or offer Namaz at the

disputed site or the Ramjanmbhumi.” (E.T.C.)

^ ^e sj k xk W ao Q Stkckn pk Sd l s 48 fdyk se hVj n wj g SA

v;k s/; k l s e sj k xk W ao 54&55 fdyk se hVj dh n wj h ij gk sx kA

- - - - eSa vf/kdka’k :i ls cSyxkMh ls v;ks/;k tkrk Fkk dHkh v;ks/;k

bDds ls tkrk FkkA - - - - - - - - -eSa 2&4 o"kZ ds fy, lu~ 1940 esa cEcbZ

x;k Fkk] mlds vykok vius xkao esa gh jgk gwWaA - - - - - 3&4 o"kZ rd eSa

cEcbZ esa lkbfdy rFkk rk’k cukus ds dkj[kkus esa vLFkk;h :i ls

dk;Zjr FkkA** ¼ist 11&12½

“My village is 48 kilometres away from Faizabad

Chowk. My village would be 54-55 kilometres from

Ayodhya. . . . . . . Mostly I went to Ayodhya on bullock-cart

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and sometimes by Tonga. . . . . . . . . . . . In the year 1940, I

had gone to Bombay for 2-4 years, and except for that

period I have always remained in my village........I

temporarily worked in Bombay for 3-4 years in factories of

cycle and playing cards.” (E.T.C.)

^^eSa vius xkao ls v;ks/;k vuqeku ls vkt rd 24&25 ckj x;k

gksÅWaxkA^* ¼ist 14½

“Till today, I may have gone to Ayodhya from my

village on approximately 24-25 occasions.” (E.T.C.)

^^eSa ;g ugha ekurk gwa fd lu~ 1528 esa ckcjh efLtn cuh FkhA

Lo;a dgk fd lu~ 1528 ;k dHkh Hkh ckcjh efLtn ugha cuh FkhA**

¼ist 15½

“I do not accept that Babri mosque was built in the

year 1528. Stated on his own that Babri mosque was not

built either in the year 1528 or on any other occasion.”

(E.T.C.)

^^bldks esjs cki&nknk Hkh ugha crk ldrs gSa fd ;g ewfrZ dc

j[kh x;hA vr,o bls esjs }kjk crk;k tkuk lEHko ugha gSA** ¼ist 18½

“Even my forefathers can not tell as to when this idol

had been placed. Hence, it is not possible for me to tell.”

(E.T.C.)

^^;g dguk xyr gS fd 23 fnlEcj lu~ 1949 dks fookfnr Hkou

esa ewfrZ;ka j[kh x;haA** ¼ist 18½

“It is wrong to say that idols had been placed in the

disputed structure on 23rd December, 1949.”(E.T.C.)

^^tc ls eSaus gks’k laHkkyk] rc ls jketUeHkwfe ifjlj esa fdlh

eqlyeku dk vkokxeu eSaus ugha ns[kk gSA** ¼ist 19½

“Since I attained maturity, I have never seen any

Muslim visit the Ramjanmbhumi premises.”(E.T.C.)

^^mRrj& jketUeHkwfe ifjlj esa esjs oki&nknkvksa ds tekus ds vkSj

igys ls ewfrZ;kWa fojkteku FkhaA^* ¼ist 20½

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“Answer:- The idols existed at the Ramjanmbhumi

premises even before the period of my forefathers.”(E.T.C.)

^^eSa QStkckn & v;ks/;k ,d lky esa vf/kd ls vf/kd 3&4 ckj

vkrk gwWaA viu s i wj s thoudky e s a Q S st kckn&v;k s/; k 26&28

ckj vk;k gk sÅ W ax kA v;ks/;k esa jkeuoeh] lkou>wyk] ifjdzek rFkk

dkfrZd iwf.kZek ;s pkj esys gksrs gSaA buesa ls nks esyksa ds volj ij eSa

izfro"kZ vkrk FkkA* ¼ist 22½

“I go to Faizabad- Ayodhya, a maximum of 3-4 times

a year. In my entire life, I may have been to Faizabad-

Ayodhya on 26-28 occasions. The four fairs of

Ramnavami, Sawan Jhula, Parikrama and Kartik Purnima

are held at Ayodhya. Out of these, I used to go to two fairs

every year.” (E.T.C.)

^^fookfnr Hkou jketUeHkwfe eafnj FkkA ;g eSa rFkk lkjh nqfu;k

dgh jgh gSA** ¼ist 23½

“The disputed structure was Ramjanmbhumi temple.

This is being claimed by me and the whole world.” (E.T.C.)

^^eSa vius c;ku esa igys dksrokyh ds ikl ftl n’kjFk egy ds

gksus dk mYys[k fd;k gS og mYys[k xyrh ls o)koLFkk ds dkj.k

Le ` fr d s { k h. k gk su s d s dkj.k , slk dg fn;k g SA ^ *

¼ist 27&29½

“My earlier statement regarding the Dashrath

palace being near the Kotwali, was made inadvertently on

account of fading memory in old age.” (E.T.C.)

^^jke us ekuo nsg /kkj.k fd;k gS] blfy, mudk tUe ysuk dgk

tkrk gSA - - - - -Lo;a dgk fd esjk bl laca/k esa c;ku lquh&lqukb Z

ckrk s a ij vk/ k k fjr g SA * * ¼ist 30½

“ Lord Rama had taken human form, and due to this

His birth is claimed. . . . . Stated on his own that my

statement in this behalf is based only on

hearsay.”(E.T.C.)

2151

^^jketUeHkwfe eafnj eSa ftls crk jgk gwWa og ogh rhu xqEcn okyk

Hkou gS ftldk fookn gSA** ¼ist 31½

“The Ramjanmbhumi temple according to me, is the

same three dome structure about which is the dispute.”

(E.T.C.)

^^esys ds volj ij ikap feuV ls de le; gh eafnj esa n’kZu

djus ds fy, feyrk Fkk D;ksafd HkhM ds dkj.k rqjUr fudky fn;k tkrk

FkkA - - - - - - - rhu xqacn okys Hkou ftlesa ewfrZ;ka j[kh Fkh ogka ij

nks&rhu feuV ls T;knk n’kZu djus ds fy, ugha feyrk FkkA - - - - - -

-ifjdzek lh[k+ps okyh nhokj ds vanj gksrh FkhA fookfnr ifjlj esa iwjc

rjQ jkepcwrjk FkkA fookfnr ifjlj esa fLFkr jkepcwrjs dh ifjdzek

ugha gksrh FkhA** ¼ist 35½

“On occasion of fair, less than five minutes were

afforded to have ‘Darshan’ in temple, because the crowd

was immediately pushed out. . . . . . Not more than 2-3

minutes were afforded for ‘Darshan’ in the three dome

structure, where the idols existed. . . . . . . The

circumambulation was performed inside the grill wall.

Ramchabutara was to the east of the disputed structure.

The Ramchabutara situated inside the disputed structure,

was not circumambulated.” (E.T.C.)

^ ^ fook fnr ifjlj e s a lhrk jlk sb Z uked LFk ku ugh a

Fk kA dk S ’ kY;k th dk NV ~Bh i wtu LFky Fk kA NV~Bh iwtu

LFky dh Hkh ifjdzek ugha gksrh FkhA** ¼ist 35½

“There was no place called Sita Rasoi in the

disputed premises. There was the ‘Chhathi’ (the sixth

day after birth) worship place of Kaushalya ji. The

‘Chhathi’ worship place was also not circumambulated.”

(E.T.C.)

^^rhu xqEcn okys fookfnr Hkou esa jke&y{e.k FkksM+k Åij FksA

Hkjr] ’k=q?u FkksMk uhps FksA cx+y esa xqQk Fkh mlesa ekrk dkS’kY;k

2152

jkeyyk dks xksan esa fy;s cSBh FkhA - - - - - -dkS’kY;k th dh ewfrZ lh<+h

ds cxy esa ,d NksVh lh xqQk ds vanj FkhA^^ ¼ist 36½

“In the three dome disputed structure, Rama-

Laxaman were at some elevation. Bharat, Shatrughan were

a bit lower. There was cave on side wherein mother

Kaushalya had Ramlala in her laps. . . . . .The idol of

Kaushalya ji was inside the cave adjacent to the steps.”

(E.T.C.)

^^tc eSa igyh ckj rhu xqEcn okys Hkou esa x;k Fkk rc eSa xqacn

ds Bhd uhps ugha x;k FkkA x a a q cn oky s H k kx d s uhp s lkeu s tk s

x sV Fk k ogk a l s e S au s n’ k Zu fd;k Fk kA* * ¼ist 38½

“When I had first gone inside the three dome

structure, I had not been exactly under the mid dome. I had

the ‘Darshan’ from the gate in front of the lower side of

the dome.” (E.T.C.)

^^e sj k tUe lu ~ 1926 e s a g qvk Fk kA - - - - - tc eSa igyh

ckj fookfnr LFky ij x;k FkkA rc ml le; lu~ 1937&38 jgk gksxkA

- - - - - eSaus fnukad 24&8&2004 dks ist 14 ij ;g c;ku fn;k g S

fd ^ ^e S a viu s xk ao l s v;k s/; k 24&25 ckj x;k gk sm ax k A *

e sj k ;g c;ku fook fnr Hkou d s fxju s rd dh vof/ k dk

g SA - - - - - lk{kh us dgk fd eSa v;ks/;k o"kZ esa vf/kdka’kr% nks ckj

x;kA dHkh & dHkh ,d ckj o"kZ esa x;k ijUrq ,slk dHkh ugha gqvk fd eSa

fdlh o"kZ v;ks/;k ,d ckj Hkh u x;k gwWaA** ¼ist 42&43½

“I was born in the year 1926. . . . . . . When I first

went to the disputed site, it was probably the year 1937-38.

. . . . . On 24.08.2004, I stated at page 14 that 'I must have

been to Ayodhya from my village on about 24-25

occasions'. This statement of mine is for the period upto

the demolition of the disputed structure. . . . . The witness

stated that mostly I went to Ayodhya twice a year.

Sometimes I went once a year, but it never so happened

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that I did not go to Ayodhya even once a year.” (E.T.C.)

^^e S a lkb Z fdy l s yxHkx chl ckj n wljk s a d s lkFk

vk;k gk sÅ W ax kA tc eSa igyh ckj fookfnr LFky ij lu~ 1938 esa x;k

Fkk rc Hkh ogka ij Hkk"dj nkl th dks ns[kk FkkA** ¼ist 47½

“I must have visited along with others by cycle, on

about 20 occasions. When I first went to the disputed site

in the year 1938, then I had seen Bhaskar Das over there.”

(E.T.C.)

2085. DW 3/17, Mata Badal Tiwari, born in 1920, has

stated visiting Ramjanm Bhumi at the age of 12 years. Ayodhya

was about 18-19 kos from his place of residence. About the

construction of the disputed building by Babar on page 30-31 he

said:

^^v;ks/;k dh ckcjh efLtn ds ckjs esa eSa ugha tkurk gwWa eq>s ;g

tkudkjh ugha gS fd ckcjh efLtn dc cuh FkhA eSa ;g ugha crk ldrk

gwWa fd ckcjh efLtn dks chj ckdh us cuok;k Fkk ;k ughaA ;g gk s

ldrk g S fd lu~ 1528 e s a ehjckdh u s ckcjh efLtn

cuokb Z gk sA * * ¼ist 30½

“I do not know about Ayodhya’s Babri mosque. I

have no knowledge about the date of construction of the

Babri mosque. I can not tell whether the Babri mosque had

been built by Mir Baqi or not. It may be that Mir Baqi

had built the Babri mosque in the year 1528.” (E.T.C.)

2086. Then on page 35 he took a different stand:

^^;g dguk xyr gS fd ehjckdh us lu~ 1528 esa efLtn dk

fuekZ.k djk;k Fkk vkSj cjkcj blesa uekt gksrh jghA ** ¼ist 35½

“It is wrong to say that Mir Baqi had built the

mosque in the year 1528 and that Namaz was regularly

offered there.” (E.T.C.)

2087. Again about the Babari mosque on page 35 and 53 he

made contradictory statement.

2154

^^eSa ;g tkurk gh ugha gwWa fd ckcjh efLtn dgka gSA**¼ist 35½

“I just do not know where is Babri mosque situated."

(E.T.C.)

^^eSaus ckcjh efLtn dk uke lquk gSA**¼ist 53½

“I have heard the name of Babri mosque.” (E.T.C.)

2088. Fallacy of his statement is evident from what he has

said on page 56, 57, 61 and 62.

^^eSaus v;ks/;k ds naxs dk mYys[k fd;k gSA ;g naxk lu~ 1934 esa

gqvk FkkA ml le; fookfnr Hkou dk dqN fgLlk {kfrxzLr dj fn;k

x;k FkkA mu xqEcnksa dks cgqr ls yksxksa us {kfr igqWpk;k FkkA {kfrxzLr

djus okys fgUnw /keZ ds vuq;k;h FksA**¼ist 57½

“I have mentioned about the riot of Ayodhya. This

riot occurred in the year 1934. Some part of the disputed

structure had been damaged at that time. Those domes

were damaged by many people. The damagers were

followers of Hindu religion.”(E.T.C.)

^^bl ?kVuk esa tks xqEcn {kfrxzLr gqvk Fkk] mls cuok;k x;k ;k

ugha] ;g eq>s /;ku ugha gSA ---------- lu ~ 1934 e s a tk s x q Ecn

{k frx zLr g qvk Fk k ] mldh dk sb Z ejEer lu~ 1992 d s i wo Z

rd ugh a g qb Z Fk hA lu ~ 1934 e sa rhuk s a x q Ecnk s a dk s { k frx zLr

fd;k x;k Fk kA chp okyk x q Ecn i wj k fxj x;k Fk kA rhuksa

xqEcnksa esa FkksM+k&FkksM+k uqdlku gqvk FkkA**¼ist 61&62½

“I do not remember whether the dome damaged in

this incident, was repaired or not. ........ The dome

damaged in the year 1934, was not repaired till the year

1992. All the three domes had been damaged in the year

1934. The mid dome had completely collapsed. All three

domes were damaged slightly."(E.T.C.)

2089. DW 3/18, Mahant Banshidhar Das @ Uriya Baba,

born in 1905, came to Ayodhya in 1930 and since then is

continuously visiting the disputed place and worshipping the

2155

idols in the inner courtyard under three dome structure as also

on Ram Chabutara etc. In his cross-examination he has also

made statement which demolishes the case of Nirmohi Akhara

about the existence of temple since time immemorial and no

construction or demolition by Babar in 1528 AD or his agent, no

riot or damage to the building in 1934 and no incident on 22/23

December, 1949. On page 34 he states to have come to Ayodhya

at the age of 28 which takes to the period of his coming to

Ayodhya from 1930 to 1933. He admits of his weak memory.

^^lk{kh us crk;k fd vf/ kd vk; q gk su s d s dkj.k e sj k

efLr"d dke ugh a djrk g SA * * ¼ist 41½

“The witness stated – Due to advanced age my

mind does not work.”(E.T.C)

^^D;ksafd e S a o `) O;fDr g wW a vk S j e sj k fnekx T +; knk dke

ugh a djrk g SA * * ¼ist 50½

“Since I am an old man, my mind does not work

much.”(E.T.C)

2090. On page 59 he states that all the temples of Ayodhya

were demolished during the reign of Mohammad Tughlaq and in

1325 the temple of the disputed place was also demolished by

him.

^^eksgEen rqx+yd+ dk 'kkludky 1320 bZ0 ls 'kq: gqvk Fkk rFkk

1325 b Z0 e sa fook fnr LFky ij fLFkr e afnj dk s fxjk;k x;k

Fk kA ¼;g ckr lk{kh us vius }kjk ykbZ x;h Mk;jh dks i<+us ds ckn

crk;k½A eksgEen rqx+yd }kjk fookfnr LFky ij cus eafnj dks fxjk;s

tkus ds ckn bl LFkku ij eafnj] jkekuan Lokeh ds f'k"; vuarkuan us

cuok;k FkkA bl eafnj dks vuarkuan us fQ+jkst'kkg rqxyd ds le; esa

cuok;k FkkA fQ+jkst'kkg rqx+yd] eksgEen 'kkg rqx+yd dk yM+dk FkkA

Lo; a dgk fd e afnj fxjk; s tku s d s ckn cg qr le; rd og

fxjk iM +k jgkA e afnj fxjk; s tku s d s ckn mldk n qckj k

fuek Z . k 30&40 o" k k sZ a d s ckn g qvkA* * ¼ist 59½

2156

“The tenure of Mohammad Tughlaq commenced in

1320 and the temple situated on the disputed site was

demolished in 1325. (The witness stated this thing after

going through a diary which he had brought along). After

the mosque situated at the disputed site had been

demolished by Mohammad Tughlaq, Anantanand, disciple

of Ramanand Swami, got a temple built on that place.

Anantanand got this temple built in the time of Firoz Shah

Tughlaq. Firoz Shah Tughlaq was the son of Mohammad

Shah Tughlaq. (Stated on his own) The temple after

having been demolished had remained as such for a

considerable time. The temple after having been

demolished was reconstructed after 30-40 years.”(E.T.C)

^^tks eafnj vuarkuan th us fookfnr LFky ij cuok;k Fkk mls

fQ+jkst 'kkg rqx+yd+ us iqu% fxjok fn;kA mlds ckn Lokeh vuqHkokuan

th us ogkWa ij eafnj cuok;kA vuqHkokuan th }kjk cuk;s x;s eafnj esa

';kekuan th jgsA ';keku an th d s le; e s a ckcj d s l su kifr

ehjckdh u s bl e afnj dk s fxjok;kA Lo;a dgk fd ckcj us ehj

ckd+h dks bl laca/k esa dksbZ funsZ'k ugha fn;k Fkk] ehj ckd+h us Lo;a

fxjok;k FkkA ehj ckd+h us eafnj dks fxjk dj efLtn ugha cuok;kA

mlus bl LFkku dks eafnj ds fxjus ds ckn mlh izdkj NksM+ fn;kA

';kekuan th ds f'k"; xksfoUnnkl us fookfnr LFky ij fQj eafnj

cuok;kA xksfoUnnkl th us fookfnr LFky ij eafnj ckcj ds le; esa gh

cuok;k FkkA tks eafnj xksfoUnnkl us cuok;k Fkk ogh eafnj 6 fnlEcj

1992 dks fxjk fn;k x;k FkkA** ¼ist 60½

“Firoz Shah Tughlaq again ensured demolition of

the temple which Anantanand Ji had got built on the

disputed site. After that Swami Anubhavanand Ji got a

temple built there. Shyamanand stayed in the temple built

by Anubhavanand Ji. In the time of Shyamanand Ji,

Babur's commander Mir Baqi got this temple

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demolished. (Stated on his own) Babur had not given any

directions in this respect; Mir Baqi had himself got it

demolished. After demolishing the temple Mir Baqi had not

got a mosque built there. In the wake of demolition of the

temple he had left this place as it was. Shyamanand's

disciple Govind Das again got a temple built on the

disputed site. Govind Das Ji had got the temple built in the

disputed site only on the time of Babur. That very temple

which Govind Das had got built, was demolished on 6th

December, 1992.”(E.T.C)

^^1930 ds ckn eqlyekuksa us fookfnr LFky ij ikWap lky ckn

vkdze.k fd;k FkkA eqlyekuksa }kjk igyk vkdze.k esjs le; esa lu~

1934 esa gqvk FkkA vkf[k+jh vkdze.k fookfnr LFky ij rc gqvk] tc

jkenso nwcs njksx+k FkkA ;g ogh jkenso nwcs Fkk] ftlus 22@23 fnlEcj

1949 dh ?kVuk ds vuqlkj fjiksVZ 23 fnlEcj 1949 dks fy[kk;h FkhA

bl jkenso nwcs dks eSa vPNh rjg tkurk FkkA** ¼ist 61½

“Five years after 1930, Muslims attacked the

disputed site. The first invasion of Muslims had taken place

in my time, that is, in 1934. The last invasion on the

disputed site was at a time when Ram Dev Dubey was an

inspector. It was the same Ram Dev Dubey who had on 23rd

December, 1949 got a report lodged as per the incident of

22nd-23rd December, 1949. I was well acquainted with this

Ram Dev Dubey.”(E.T.C)

^^okLrfodrk ;g gS fd 1934 e s a efLtn dk s tk s gk fu g qb Z

Fk h ] mls fgUnw lk/kqvksa us Lo;a pUnk ,d= djds ftldh jkf’k 35 gt+kj

Fkh] cuok fn;kA** ¼ist 89½

“Reality is that Hindu saints got repaired the

damage, caused to the mosque in 1934, by themselves

collecting subscription which had aggregated to Rs.

35,000.”(E.T.C)

2158

^^;fn lu ~ 1930 d s i wo Z fook fnr LFky ij e qLrfd +y

rk S j ij uekt + i< +h tkrh jgh gk s] rk s mld s ckj s e s a e q> s

tkudkjh ugh a g SA ;fn esjh vuqifLFkfr ds nkSjku lu~ 1930 ls 1949

ds chp fookfnr LFky ij uekt+ i<+h tkrh jgh gks] rks bldh Hkh

tkudkjh eq>s ugha gSA** ¼ist 93&94½

“If namaz may have regularly been offered on the

disputed site prior to 1930, I do not have the knowledge

about the same. If namaz may have been offered on the

disputed site between 1930 to 1949 in my absence, I also

do not have the knowledge about the same.”(E.T.C)

^^;g Hkh dguk xyr gS fd 22 fnlEcj lu~ 1949 rd fookfnr

Hkou ds fdlh Hkh Hkkx esa dksbZ Hkh ewfrZ ugha j[kh FkhA** ¼ist 96½

“It also incorrect to say that no idol had been placed

in any part of the disputed building up to 22nd December,

1949.”(E.T.C)

2091. DW 3/19, Ram Milan Singh has sought to prove the

existence of idols in the disputed building, i.e., under the Central

Dome in the inner courtyard and also on Ram Chabutara which

he had been visiting for Darshan and worship since 1940 till

1949. According to the age given in his affidavit, year of birth

comes to 1929. He is resident of Mauja Haliyapur, Pargana

Isauli, Tahsil Musafirkhana, District Sultanpur. He claims to

have mainly visited in the three fairs held at Ayodhya. First of

all with respect to the averments contained in his affidavit which

he has filed under Order 18 Rule 4 on page 70 he says:

^ ^bl 'kiFk i= dk s r S;kj dju s oky s O;fDr gh bl

ckj s e s a crk ldr s g S aA eq[; ijh{kk ds 'kiFk i= ij gLrk{kj djus

ds iwoZ eSaus iwjk ugha i<+k FkkA - - - -”'kiFk i= ij gLrk{kj eSaus mPp

U;k;ky;] y[kuÅ esa fd;k gSA ;g 'kiFk i= y[kuÅ esa VkbZi gqvk

Fkk ;k ugha] ;g eSa ugha crk ldrkA esjs bl 'kiFk i= dk izk:i tc

rS;kj fd;k x;k Fkk] rc eSa v;ks/;k esa vius odhy lkgc ds ?kj ij

2159

FkkA mUgksaus ;g crk;k Fkk fd eSa vkids 'kiFk i= dk et+ewu rS;kj dj

jgk gwaA 'kiFk i= dk et +e wu r S;kj gk su s d s ckn e S au s ml s

ugh a n s[ k k A * * ¼ist 70½

“The person having prepared this affidavit, can

only tell about this. I had not completely read the affidavit

of examination-in-chief before signing it. . . . . . I had put

my signature on the affidavit at the High Court, Lucknow. I

cannot tell whether this affidavit had been typed out at

Lucknow or not. At the time when the draft of this affidavit

of mine had been prepared, I was at the place of my

counsel in Ayodhya. He had told that ‘I am preparing the

draft of your affidavit’. I had not seen the contents of the

draft of the affidavit, after it was prepared.” (E.T.C)

2092. This itself makes his entire deposition doubtful and

unreliable. He also admits of having never entered three dome

disputed structure prior to 1986.

^^lu~ 1972 ds iwoZ 1940] 1941] 1942 esa tc eSa fookfnr LFky ij

tkrk Fkk] rks xqEcn ds uhps x;k FkkA i qu% dgk fd e S a lu ~ 1940]

1941 o 1942 e s a x q Ecn d s uhp s oky s H k kx e s a ugh a x;k

Fk kA* * ¼ist 34½

“Prior to the year 1972, whenever I used to go to the

disputed site in the years 1940, 1941, 1942, I had gone

beneath the dome. Again stated that I had not gone to the

place beneath the dome in the years 1940, 1941 and

1942.” (E.T.C)

^^;g dguk lgh gS fd rhu x q Ecn oky s fook fnr Hkou d s

v anj e S a lu ~ 1986 d s i wo Z dHk h ugh a x;kA* * ¼ist 56½

“It is correct to say that I had never been inside the

three domed disputed structure before the year

1986.”(E.T.C)

2093. Distance of disputed site from the witness's residence

2160

is about 54 Kms. The witness says that in 1940, 1941 and 1942

he came to Ayodhya on a bullock-cart and thereafter on foot till

1948 and then by bus in 1948 and onwards. He has however

admitted his date of birth on page 67 as 15.01.1930.

2094. DW 3/20, Mahant Rajaram Chandracharya, aged

about 76 years in 2004, must have born in the year 1930, came

to Ayodhya in 1944 at the age of 14 years. He claims to become

pupil of Mahant Raghunath Das who was Mahant of Nirmohi

Akhara at that time. He was assigned duties to perform at

Janambhumi Temple where he worked from 1943 to 1949 and

claim continuous worship of the idols placed in the internal part

of the disputed building, i.e., under the three domed structure.

Very clearly he has given topography of various structures in

regard to the disputed site which is almost consistent with

various maps prepared by different Commissioners appointed by

the Civil Judge in different proceedings including that of

Commissioner’s map prepared in Suit 1885. The following part

of his statement are relevant for our purposes.

^^eSa bl eqd+nesa esa fueksZgh v[kkM+k ds iap rFkk i{kdkj ds #i esa

c;ku ns jgk gwWaA** ¼ist 41½

“I am testifying in this case as a 'Panch' of the

Nirmohi Akhara and as a party.”(E.T.C)

^^lu~ 1943 esa tc eSa izFke ckj v;ks/;k vk;k Fkk] rc ogkWa ij

ckcjh efLtn dk vfLrRo gh ugha FkkA lu~ 1943 esa fookfnr LFky ij

dksbZ efLtn ugha Fkh] D;ksafd ml le; ogkWa ij ewfrZ iwtk gksrh FkhA eSaus

ckcjh efLtn dk uke lquk gSA fook fnr Hkou ckcjh efLtn g SA

i qu% dgk fd ;g ckcjh efLtn ugh a g S ] ;g e afnj g SA

fookfnr Hkou esa rhu xqEcn gSaA ;g efLtn ugha gSA ;g Hkxoku jke dh

tUeHkwfe gSA lu~ 1943 esa tc eSa izFke ckj v;ks/;k x;k Fkk] rc eSaus

ckcjh efLtn ns[kh gh ughaA fookfnr Hkou esa eSaus dHkh uekt+ gksrs gq,

ugha ns[kkA eSaus ogkWa ij iwtk gksrs ns[kh gSA Lo;a dgk fd tgkWa ij iwtk

2161

gksrh gS] ogkWa ij uekt+ gksus dk iz'u gh ugha mRiUu gksrkA lu~ 1943 esa

tc eSa izFke ckj v;ks/;k x;k Fkk] rc fookfnr LFky ij eSaus efLtn

ugha ns[kk Fkk] efUnj ns[kk FkkA Lo;a dgk fd ogkWa ij iwtk&lsok gksrh

FkhA fookfnr Hkou esa rhu xqEcn cus gq, FksA** ¼ist 51½

“In 1943, when I first came to Ayodhya, the Babri

mosque was not at all existing there. There was no mosque

on the disputed site in 1943, because there used to be

worship of idols over there. I have heard the name of the

Babri mosque. The disputed building is the Babri

mosque. (Again stated) It is not the Babri mosque; it is a

temple. The disputed building has three domes. It is not a

mosque. It is the birthplace of Lord Rama. In 1943, when I

first visited Ayodhya I did not see the Babri mosque at all. I

never saw namaz being offered in the disputed building. I

have seen Pooja being performed there. (Stated on his

own) No question arises of offering namaz at a place where

Pooja is performed. In 1943, when I first visited Ayodhya, I

saw a temple, not a mosque, on the disputed site. (Stated on

his own) There used to be Pooja-Sewa (offering worship

and rendering service) over there. Three domes were built

in the disputed building.”(E.T.C)

^^v;ks/;k esa eSa vanktu yxHkx 8&9 o"kksZa rd jgk gwWaA lu~ 1943

ls ysdj lu~ 1949&50 rd fookfnr Hkou esa uekt+ ugha gksrh Fkh] cfYd

iwtk gksrh FkhA** ¼ist 54½

“I guess to have resided at Ayodhya for about 8-9

years. Namaz was not offered at the disputed building from

1943 to 1949-50; rather, Pooja (worship) was

performed.”(E.T.C)

^ ^e S au s ;g lquk g S fd ckcj u s lu ~ 1528 e s a ef Unj

dk s rk sM +dj efLtn cuokb Z Fk h vkSj mlh dks ysdj fookn la?k"kZ

dk :i fy, pyrk vk jgk gSA** ¼ist 56½

2162

“I have heard that Babur had got the mosque built

by breaking down the temple in 1528, and the dispute

over that very construction has been continuing, taking the

shape of struggle.”(E.T.C)

^^fookfnr Hkou ds lEcU/k esa ;g dgk tkrk g S fd ;g

efUnj rk sM +dj lu ~ 1528 e s a efLtn cukb Z xb Z A ;g dguk

x+yr gS fd fookfnr LFky ij cjkcj uekt+ gksrh jgh gSA** ¼ist 57½

“It is said about the disputed building that

demolishing this temple the mosque was constructed in

1528. It is incorrect to say that namaz has regularly been

offered on the disputed site.”(E.T.C)

^ ^ fook fnr Hkou d s rhuk s a x q Ecn d s uhp s dk Hk kx

xHk Zx `g Fk kA vktdy tgkWa rEcw ds vanj Hkxoku jkeyyk gSa] og ,d

NksVk LFkku gSA xHkZxg ls esjk rkRi;Z ;g gS fd tgkWa fdlh dk tUe

gksrk gS] mlh LFkku dks xHkZx`g dgrs gSaA** ¼ist 72½

“The part beneath the three domes of the disputed

building was 'Garbh-Grih' (sanctum sanctorum). The

place where Lord Ramalala rests under a tent today, is a

small place. By 'Garbh-Grih' I mean that a place where

someone is born, is called 'Garbh-Grih'. ”(E.T.C)

^^eSaus dy ;g c;ku fn;k Fkk fd 1943 ls 1951 rd eSa xqEcn

okys Hkou esa jgrk FkkA jgus ls esjk vk'k; iwtk&ikB djus o vkjke

djus ls Fkk] lksus ds fy, eSa fookfnr LFky esa cus lUr fuokl esa tkrk

FkkA - - - - -;g lUr fuokl fookfnr Hkou ds ifjlj dh mRrjh nhokj

ls feyk gqvk FkkA** ¼ist 82½

“I had given a statement yesterday that I resided in

the domed building from 1943 to 1951. By 'residing' I mean

'offering Pooja-Paath' and 'taking rest'; I used to go to

Sant Niwas built on the disputed site to take sleep. . . . . . .

This Sant Niwas abutted on the northern wall of the

disputed building premises.”(E.T.C)

2163

^^tks fookfnr Hkou 6 fnlEcj 1992 dks rksM+dj fxjk fn;k x;k

Fkk] og Hkou esjs Kku ds eqrkfcd 500 o"kZ ls T;knk iqjkuk FkkA og

Hkou] jkeeafnj Fkk] tks ckcj ds 'kkludky ds igys ls Fkk vkSj ftls

ckcj us ifjofrZr fd;k Fkk] fQj dgk fd ifjofrZr djus dh dksf'k'k

dhA mDr Hkou ckcj d s 'k kludky l s igy s l s fufe Zr Fk kA

ckcj d s 'k kludky e s a ml Hkou dh rk sM +Q k sM + g qb Z Fk h rFk k

i qufu Zek Z . k g qvk Fk kA esjs dgus dk vk'k; gS fd iwoZ fufeZr Hkou dks

ckcj ds 'kkludky esa rksM+QksM+ djus ds ckn iqufuZekZ.k dh dksf'k'k dh

xbZ] ftlesa mls lQyrk ugha feyh vkSj og la?k"kZ ds #i esa cny x;k

vkSj og la?k"kZ vkt Hkh py jgk gSA** ¼ist 98½

“The disputed building, demolished on 6th December,

1992, was, as per my knowledge, older than 500 years.

That building was Rama Temple, which existed from before

the reign of Babur and which Babur changed, (further

stated) tried to change. The said building was built from

before the tenure of Babur. During the reign of Babur

that building had been damaged and reconstructed. I

mean to say that during the reign of Babur attempts were

made for reconstruction after damaging the earlier built

building. He had not succeeded in his attempt and the

situation had turned into a struggle, which is continuing

even today.”(E.T.C)

^^ckcj ds t+ekus esa tc eafnj rksM+dj fookfnr Hkou cuk;k x;k

Fkk] rc 84 esa ls 70 [kaHks yksx mBk ys x;s gksaxs ;k D;k gks x;s] bldk

eq>s irk ugha] D;ksafd og dlkSVh iRFkj Fkk] dherh ik"kk.k FkkA**

¼ist 100½

“I do not know whether 70 out of 84 pillars may have

been picked up by people at the time when the disputed

building was constructed by demolishing the temple in the

time of Babur or what happened to such pillars, because

there were of Kasauti stone, costly stone.”(E.T.C)

2164

^^vkt tks ewfrZ;kWa fookfnr LFky ij ns[kus dks feyrh gSa] os ogh

ewfrZ;kWa gSa] tks ckck ';kekuUn th ds }kjk mRrjk[k.M ysdj pyh tkus

okyh ewfrZ;ksa esa ls gSaA ckck ';kekuUn th og ewfrZ;kWa ckcj ds vkdze.k

ds le; mRrjk[kaM ysdj pys x;s FksA xksfoUnnkl th ckck ';kekuUn

ds vaxj{kd o f'k"; FksA xksfoUnnkl th us ewfrZ;kas dks ys vkdj iqu%

mlh LFkku ij LFkkfir dj fn;kA** ¼ist 101&102½

“The idols which are now seen on the disputed site,

are among the idols which had been taken along by Baba

Shyamanand Ji to Uttarakhand. Baba Shyamanand Ji had

gone to Uttarakhand at the time of Babur, taking along

those idols. Govind Das Ji was the body guard and disciple

of Shyamanand. Govind Das Ji took the idols along and

reinstalled them on that very place.”(E.T.C)

^^jke pcwrjk dh LFkkiuk Hkh mlh le; gqbZ] tc ckck xksfoUn

nkl th us ewfrZ;ksa dh iquZLFkkiuk mlh LFkku ij dh] tgkWa ij og ewfrZ;ka

igys FkhaA ;g ckcj ds 'kkludky dk vkf[k+jh le; FkkA bl jke pcwrjs

ij Hkh jkeyyk] Hkjr th] y{e.k th] 'k=q?u th o dkSf'kY;k th dh

ewfrZ;ka xksfoUn nkl ds f'k";ksa esa ls fdUgha f'k";ks }kjk LFkkfir dh x;haA

ml f'k"; dk uke ;kn ugha gSA** ¼ist 103½

“Ram Chabutra was also built at that very time when

Govind Das Ji had reinstalled the idols on that very place

where they existed earlier. It was the concluding period of

Babur's tenure. Idols of Ramlala, Bharat Ji, Lakshman Ji,

Shtrughn Ji and Kaushalya Ji were installed on this Ram

Chabutra, too, by certain disciples of Govind Das. I do not

remember the names of those disciples.”(E.T.C)

^ ^lu ~ 1934 e s a tk s n ax k g qvk Fk k mll s ckcjh efLtn

dk s u qdlku g qvk Fk k mld s ckn fgUn qvk s a ij V SDl yxk

vk S j mlh i Sl s l s efLtn dh ejEer i qu% dj nh xb ZA * *

¼ist 106½

“Damage was caused to the Babri mosque due to

2165

the riot which had broken out in 1934. After that tax was

imposed on Hindus and the mosque was repaired from

that very fund.” (E.T.C)

^^eSa fookfnr LFkku ij lu~ 1943 esa vk;k Fkk vkSj rHkh ls eSaus

xksfoUn nkl th dks iqtkjh ds :i esa ogkWa ns[kk FkkA os tc rd thfor

jgs] ogkWa ij iqtkjh jgsA mudh eR;q yxHkx lu~ 1950 esa gqbZA Jh

cynsonkl th tks xksfoUn nkl th ds le; lgk;d iqtkjh Fks mudh

eR;q ds ckn cM+s iqtkjh ds :i esa dk;Z djus yxsA** ¼ist 208½

“I came to the disputed site in 1943 and since then I

saw Govind Das Ji as a priest there. As long as he was

alive, he was priest there. He died in around 1950. At the

time of Govind Das Ji, Sri Baldev Das Ji was assistant

priest. After the former's death the latter began to work as

chief priest.”(E.T.C)

NOTE: This statement shows that during this period of 1943

to 1950 Mahant Bhaskar Das was not there as Pujari at the

disputed site though it has been so claimed by other witnesses

and that stand contradicted.

2095. Sri Jilani, learned counsel for plaintiffs (Suit-4) has

taken great pains in placing before us the apparent contradiction

and incorrectness in the statement of these witnesses at several

places and in particular in recognising places, topography,

various structures etc. in the photographs which are part of

record, some of which were obtained by Sri Bashir Ahmad,

Civil Court’s Commissioner appointed in 1950 and most of

them were prepared by the State Archaeological Survey through

its Director, Dr. Rakesh Tiwari in 1990 pursuant to an order

passed by this Court on 10.01.1990 which reads as under:

"Sunni Central Waqf Board has filed this application

in Suit No. 4 of 1989 for:

I- permitting and authorising the plaintiff or its

2166

representatives to enter upon the property in

suit with a photographer and others to take the

photographs of the building and the

surrounding area;

II- taking measurements of the buildings and its

boundaries;

III- permitting a video tape of the same for being

placed as evidence in Court and

IV- such other direction as the Court deems fit and

proper.

Another application has been moved by defendant

no. 2 (Paramhans Ram Chandra Das) purporting to be

under Order XXXIX Rule 7 of the Code of Civil Procedure

through Sri Tilhari, Advocate, in Suit No. 4 of 1989, and

the permission sought for is the same as in the application

mentioned above.

A third application has also been filed in Suit No. 2

of 1989 by the defendant no. 3 of the said suit for

appointing a survey commissioner for preparing a report in

accordance with the map and Abadi Khasra (Annexures I

and II) filed along with this application.

Sri Abdul Mannan, counsel appearing for the

plaintiff in Suit No. 4 of 1989, referred to an application

filed on its behalf in the Court below for appointment of a

survey commissioner.

The last prayer made was contested on the ground

that as the application filed in the trial court stood

disposed of the prayer made by Sri Abdul Mannan could

not be acceded to. This submission is not correct. The

application was not rejected. It was kept in abeyance

2167

directing that an order for survey commissioner would be

made after final hearing. Since we are of the opinion that a

survey commissioner be appointed at this stage, therefore,

we direct that the Registrar/Secretary of the Board of

Revenue to appoint any officer, not below the rank of

P.C.S. Officer, having knowledge of survey work, to survey

the site and to report the location of the plots. The survey

commissioner to be appointed would take assistance from

the municipal records and such other records which he

considers to be useful for the same purpose. The

commissioner would give notices of the date, on which he

would like to survey, to the Sunni Central Waqf Board and

the defendants nos. 2 and 13, namely, Paramhans Ram

Chandra Das and Mahant Dharam Das, in Suit No. 4 of

1989. Since we are of the opinion that the photographs of

mosque and temple, including all the pillars, may also be

helpful for deciding the controversy in this suit, as well

as other connected ones, we direct that the photographs

of the mosque, temple, including pillars be taken and

prepared.

The question as to who would be fit for purposes of

carrying out the directions of the Court was considered by

us at length. In the circumstances, we consider that the

Director, U.P. Archaeological Department, be asked to

do the same. He would also prepare carbon dating of the

pillars, mosque and temple. For purposes that the

directions given by us are effectively complied with and no

unnecessary rush gets collected, we consider that out of the

two sides, that is, Sunni Central Waqf Board and

defendants 2 and 13 would be entitled to take not more

2168

than seven persons with themselves, one of them can be a

photographer.

So far as defendant no. 3 is concerned, we consider,

for purposes of settlement of controversy involved in the

suit, its interest is not adverse to that of the defendants nos.

2 and 13, therefore, it can take with itself three persons.

The Director, Archaeological Department, would

also get video cassettes prepared of the mosque, temple

and pillars. The district administration will make

arrangement for security.

The Advocate General had made a statement in the

Court that the expenses would be borne by the State of all

the proceedings, such as the present. Consequently, we

direct that for making the survey commission, taking

photographs, video cassettes etc. the expenses would be

borne by the State itself.

The applications are decided accordingly."

(emphasis added)

2096. Dr. Rakesh Tiwari, OPW 14 has proved the aforesaid

photographs and also the video recording made of the disputed

building. He (Sri Jilani) says, since the witnesses have failed to

identify most of the photographs and in fact made apparently

wrong statements, showing that they never visited the disputed

place, their statements are basically wrong and should be

rejected.

2097. It is no doubt true that almost all the witnesses have

failed to identify correctly location, site or the objects shown in

one or the other of the above photographs, but then we have to

consider certain well settled principles in the matter of oral

evidence. Memory of a man may be very good or may not be,

2169

depending upon the individual. Some people's memory is so

sharp that they can continue the things in their mind for several

years, decades and may tell very accurately the things happened

20, 30 or 40 years back but this is not a normal phenomena.

Normal period of memory of human being is not so long. All the

witnesses who have appeared before us have deposed their

statements after more than 50 years of the incident. To expect

meticulous details, these witnesses can recollect, what transpired

or what they observed more than 50 years ago and that too when

they must not have any idea that at some point of time they will

have to depose statement in a Court of Law and, therefore, could

not watch everything very carefully and minutely, is too much.

Such lacking is quite normal. No one has a flashing computerise

memory. Such expectation and that too from those who are

simple rural folks, is too much. We have to consider the overall

credibility of the statement of the witnesses as that could be of

an ordinary human being.

2098. In fact similar kind of error has occurred virtually with

all the witnesses of fact who have deposed their statements

whether on behalf of plaintiffs or defendants. It is for this

reason, we have not delved into the statements of all the

witnesses of facts with respect to the events of 1950 and earlier

thereto by looking into contradiction of each line, each word and

each page, i.e., on every aspect. We have tried to find out truth

in the statements of witnesses by judging their credibility by

narrowing down the facts which they intend to prove in their

examination-in-chief and thereafter looking to the general

conduct, attitude and some other circumstantial state of affairs

as discerned from the statement of the witnesses in cross-

examinations. Wherever oral evidence is corroborated with the

2170

documentary evidence than obviously one has to take more

reliable one than the one which is totally based on the statement

of a person which is slippery and appears to be tutored. For a

particular fact, if one gives statement of a fact which occurred

50 and more years back with minute details but not able to

recollect or tell the Court about such event the dates of which

are much more recent, normally very important for a man’s life,

for example the date or year of birth of children, marriage etc.

which must be known by him, then his statement becomes

suspicious and needs to be seen with care.

2099. So far as claim of Nirmohi Akhara is concerned that

nothing had happens on 22/23 December, 1949 and idols existed

under the central dome in the inner courtyard much prior thereto

is not only unbelievable and incorrect but in fact many of their

own witnesses have proved their case wrong. Many of the

witnesses appeared on behalf of Nirmohi Akhara have made

statement which is wholly inconsistent to the basic pleadings of

Nirmohi Akhara, plaint and replication in Suit-3 and in written

statement in Suit-4 and 5.

2100. Though twenty witnesses have been produced on

behalf of Nirmohi Akhara and it is strange but unfortunate that

we find almost all of them uncreditworthy so far as this aspect

of the matter is concerned that the idols in dispute were placed

inside the building under central dome long back and much

before 22nd December, 1949 and nothing happened on that day.

It is well settled that the quantity of evidence does not matter

but it is the quality of evidence which matters.

2101. On the point where there is some variance between

pleadings and proof, in Ananda Chnadra Chakrabarti vs.

Broja Lal Singha (supra), the Court while taking the view that

2171

every variance is not fatal has held:

“ The rule that the pleading and proof must

correspond is intended to serve a double purpose; first, to

apprise the defendant distinctly and specifically of the case

he is called upon to answer; and, secondly, to preserve an

accurate record of the cause of action as a protection

against a second proceeding upon the same allegations.

The test thus is, whether the defendant will be taken by

surprise if relief is granted on the facts established by the

evidence, or, as has sometimes been said, a variance

between a pleading and what is proved is immaterial

unless it hampers a defence or unless it relates to an

integral part of the cause of action.”

2102. In Sewkissendas Bhatter & others Vs. Dominion of

India AIR 1957 Cal. 617 and Basant Kumar Roy Vs.

Secretary of State for India & others AIR 1917 PC 18, it was

held that where a matter requires consideration of facts, a new

fact ought not to be allowed unless supported by pleadings since

its is only the matters of law which can be allowed to be raised

and not those where factual investigation is required.

2103. Extending the diluted approach as observed by the

Culcutta High Court in Ananda Chandra Chakrabarti vs.

Broja Lal Singha (supra) yet we find that it is really

unfortunate that even this approach may not help the plaintiffs

(Suit-3) for the reason that the variance in pleadings and proof is

so inconsistent that virtually it amounts to a mutually destructive

plea and when the variance is so wide, it cannot but fatal to the

case of the plaintiffs (Suit-3). It demolishes their case virtually

in its entirety for the purpose of their claim in respect to the

premises inside the courtyard.

2172

2104. We have no hesitation in holding and recording our

finding that under the central dome of the disputed building,

idols were kept in the night of 22nd/23rd December, 1949.

2105. Now the question about the consecration of the said

idols and whether the idols were kept after observing the

procedure meant for consecration, and, if the idols were same as

were kept on Ram Chabutara up to 22nd December, 1949,

whether on shifting, fresh exercise of consecration was required

and its effect etc., if any.

2106. The crucial aspect would be whether the idols kept

under the central dome in the night of 22nd/23rd December, 1949

were placed in such a manner that the people who visit to

worship believe, that there exists a divine spirit, it is a deity

conceived of as a living being, capable of providing spiritual

salvation and it is a deity having supreme divine powers. As we

have discussed, an idol itself is not worshipped but it is a

particular image wherein on consecration it is believed by the

Hindus that it has attained such divinity and supreme power so

as to provide human salvation and fulfillment of wishes of the

beneficiary. The idol is only a material symbol and embodiment

of pious purpose though the real worship is that of a supreme

power. In T.R.K. Ramaswami Servai (supra) as we have

already observed the test was not whether the installation of an

idol and the mode of its worship conform to any particular

school of Agama Sastras but if the public or that section of the

public who go for worship consider that there is a divine

presence in a particular place and by offering worship at that

place, they are likely to be the recipients of the bounty or

blessings of God then it is a temple, a deity capable of worship

and no further ceremonial right is required to be shown. This

2173

has been approved and affirmed by the Apex Court in Ram

Jankijee Deities (supra). None of the witnesses of plaintiffs

(Suit-4) have said that he was present at the time of such

placement. On the contrary, plaintiff no. 3 (Suit-5) , i.e., OPW 2

in his statement under Order X Rule 2 has clearly said that due

ceremonies were performed when the idols were transferred.

Paramhans Ramchandra Das also appeared in the witness box as

OPW 1 and has proved the state of affairs. His presence on the

site at the relevant time has not been doubted either by the

plaintiffs (Suit-4) or their witnesses or before us during the

course of arguments by learned counsels. Some other witnesses

have also proved this fact.

2107. It thus cannot be said that the idol(s) placed therein

were not properly consecrated. Atleast the status of deity cannot

be assailed by those who do not believe in idol worship since it

is to be seen from the angle of those who go and worship

thereat. They conform the test of being a juridical person in the

eyes of law.

2108. The plaintiffs (Suit-4) have failed to prove that idols

and objects of worship were placed inside the building as

described in plaint by letters ABCD read with the map appended

to the plaint in the night intervening 22nd/ 23rd December, 1949.

Consistent with the pleadings in plaint (Suit-4), the building

denoted by the area ABCD of the map appended to the plaint

(Suit-4), the idols and object of worship were existing even prior

to 22nd December 1949 at Ram Chabutara, in the outer

courtyard.

2109. We accordingly answer Issue No. 12 (Suit-4) in

negative. The effect of this answer shall be considered at the

relevant stage and need not be answered at this stage.

2174

2110. Issue No. 3 (a) Suit-5 is answered in affirmance i.e. in

favour of the plaintiffs (Suit-5). It is held that the idol(s) in

question was/were installed under central dome of the disputed

building (since demolished) in the earlier hours of 23rd

December 1949 as alleged by the plaintiff in para 27 of the

plaint and clarified by the plaintiffs in the statement under Order

X Rule 2 C.P.C. The Issue No. 1 (suit-5) is, also, accordingly,

answered in its entirety, in affirmance. It is held that the

plaintiffs 1 and 2 both are juridical person. Issue No. 21 (Suit-5)

is answered in negative, i.e., against the defendants no. 4 and 5.

2111. Having said so, immediately Issue No. 21 (Suit-4)

need be considered as to whether the Suit is bad for non-joinder

of the said deity.

2112. An idol being a legal/juristic person, is a necessary

party in a suit where relief is sought against it. The idol

represents a Deity or a spiritual being whose existence is

recognized by Hindu Law. The Deity or spiritual being is

supposed to exist for ever. It cannot suppose to act like an

ordinary human being but has to be represented by someone.

Where a suit is filed seeking a relief against an idol without its

impleadment, the suit cannot be decreed against the idol and has

to be dismissed for the reason that decree, if any, is passed,

would not be binding upon the idol.

2113. In Mukundji Mahraj (supra), para 31 of the

judgment, the Court said :

"As the idol was not properly represented in the aforesaid

suits, the decrees were nullities as against the idol. In such

cases the principle laid down by the Privy Council in

Rashidunnisa Vs. Muhammad Ismail, ILR 31All 572 (PC)

(I) and by this Court in Dwarika Halwai v. Sitla Prasad,

2175

1940 All LJ 166: (AIR 1940 All 256) (J) applies. The

decree is not merely voidable, but null and void. The

decrees being nullities can be ignored and the plaintiff is

not under the necessity of having them set aside before

suing for possession."

2114. In B. Jangi Lal Vs. B. Panna Lal and another AIR

1957 Allahabad 743 a Division Bench of this Court said that an

idol can bring a suit to defend its interest and also has right to

defend itself in a suit instituted claiming a relief which impairs

the idols rights. Whether it is a necessary party or not depends

upon the facts and circumstances of each case. Where the

interest of the idol are directly affected or its own existence

seriously impaired appearance of idol before the Court is

necessary. However, while observing so in para 5, the Court

proceeded further to observe where it is found that idol must be

impleaded being a necessary party, it should do so.

2115. In our view this later observation in B. Jangi Lal

(supra) would require a little clarification. It is suffice if the

plaintiff is made known of the fact that idol being a juristic

personality, a necessary party. Wherever its interest is sought to

be impaired, no relief can be granted without impleading it.

Despite this aspect having been pointed out by the defendants in

suit, if no attempt is made by the plaintiff to implead the idol

and on the contrary this is defended by objecting to the issue,

the matter would have to be considered in a different manner

and if at the time of final adjudication the Court finds that the

suit was filed without impleading a necessary party and

continuing as such it would have to face the logical

consequences.

2116. In K. Manathunainatha Desikar Vs. Sundaralingam

2176

(supra) a Full Bench of the Madras High Court in para 20 of the

judgment observed:

"............The Deity, a juristic entity, is the proprietor who

never dies but labours under physical disability which

renders it necessary that its interests should be looked

after in perpetuity."

2117. In Jodhi Rai Vs. Basdeo Prasad and Ors. (supra) a

Full Bench of this Court held:

"...............An idol has been held to be a juristic person who

can hold property. Therefore, when a suit is brought in

respect of property held by an idol, it is the idol who is the

person bringing the suit or against whom the suit is

brought, the idol being the person beneficially interested in

the suit."

2118. The Court in Jodhi Rai (supra) however on merits

found that though the idol was impleaded through Manager but

it was not properly described. In these circumstances, the Court

held that the correction in the description could have been

permitted to the plaintiff and this by itself does not warrant

dismissal of suit since correction would not have the effect of

introducing third party, on record after expiry of period of

limitation. However where the necessary party has not been

impleaded within the period of limitation, the position may be

different.

2119. In Bimal Krishna Ghose and Ors. Vs. Shebaits of

Sree Sree Iswar Radha Ballav Jiu and Ors. AIR 1937 Cal 338

the Court referring to its earlier decision in Rabindra Nath Vs.

Chandi Charan AIR 1932 Cal 117 observed that in India, the

Crown is the constitutional protector of all infants and as the

Deity occupies in law the position of an infant, the Shebaits who

2177

represent the Deity are entitled to seek the assistance of the

Court in case of mismanagement or maladministration of the

deity's estate and to have a proper scheme for management

framed which would end the disputes amongst the guardians and

prevent the debutter estate from being wasted or ruined.

2120. In para 7 of the judgment the Court relied and referred

to the Privy Council decision in Kanhaya Lal Vs. Hamid Ali,

AIR 1933 PC 198 and observed :

"The Privy Council held that they could not deal with the

appeal in the absence of the idol whose interest arose

under the Wakf ..................."

2121. In Kasturi Vs. Iyyamperumal and Ors. 2005 (6) SCC

733 referring to Order I Rule 10 as to who would be the

necessary party in para 7 and 13 it said :

7. In our view, a bare reading of this provision, namely,

second part of Order 1 Rule 10 sub-rule (2) CPC would

clearly show that the necessary parties in a suit for specific

performance of a contract for sale are the parties to the

contract or if they are dead, their legal representatives as

also a person who had purchased the contracted property

from the vendor. In equity as well as in law, the contract

constitutes rights and also regulates the liabilities of the

parties. A purchaser is a necessary party as he would be

affected if he had purchased with or without notice of the

contract, but a person who claims adversely to the claim of

a vendor is, however, not a necessary party. From the

above, it is now clear that two tests are to be satisfied for

determining the question who is a necessary party. Tests

are – (1) there must be a right to some relief against such

party in respect of the controversies involved in the

2178

proceedings; (2) no effective decree can be passed in the

absence of such party.

13. From the aforesaid discussion, it is pellucid that

necessary parties are those persons in whose absence no

decree can be passed by the court or that there must be a

right to some relief against some party in respect of the

controversy involved in the proceedings and proper parties

are those whose presence before the court would be

necessary in order to enable the court effectually and

completely to adjudicate upon and settle all the questions

involved in the suit although no relief in the suit was

claimed against such person.

2122. In J. Jaya Lalitha Vs. Union of India & another AIR

1999 SC 1912, the Court observed that "necessary" means that

is indispensable, needful and essential in respect of which,

nothing is vague or nebulous.

2123. In Udit Narain Singh Malpaharia Vs. Additional

Member, Board of Revenue AIR 1963 SC 786, the Court said

that a necessary party is one without whom no effective order

can be made; a proper party in whose absence an effective order

can be made but whose presence is necessary for a complete and

final decision on the question involved in the proceedings.

2124. In Prabodh Verma & others Vs. State of U.P. and

others AIR 1985 SC 167 it was considered as to who are

necessary and proper parties. The Court observed that a person

who may be adversely affected directly by a decision of the

Court is a necessary party, for the reason any order passed

behind his back may not be binding upon him having been

passed in violation of the principles of natural justice.

2125. In Ramesh Hirachand Kundanmal Vs. Municipal

2179

Corporation of Greater Bombay & others (1992) 2 SCC 524,

the Court said that parties whose presence before the Court is

necessary in order to enable the Court effectually and

completely to adjudicate upon and settle all the questions

involved in the suit, are necessary parties. What makes a person

a necessary party is not merely that he has relevant evidence to

come on some of the questions involved nor it is merely that he

has interest in the correct solution of some questions involved,

and has relevant arguments to advance. The only reason which

makes it necessary to make a person a party to an action is so

that he should be bound by the result of the action, and the

question to be settled, therefore, must be a question in the action

which cannot be effectually and completely settled unless he is a

party.

2126. It has also been held in a catena of decisions that non

impleadment of a necessary party is fatal as provided in the

principles enshrined in proviso to Order 1, Rule 9 C.P.C.

Recently, a Division Bench of this Court also taken the above

view in Satya Narain Kapoor Vs. State of U.P. & others 2007

(2) ARC 308.

2127. In Narayan Bhagwantrao Gosavi Balajiwale (supra)

the Apex Court in para 41 of the judgment observed:

"..................The difficulty in the way of the appellant is

real. He refrained from joining the Deity, if not as a

necessary, at least as a proper party to the suit. If he had

joined the deity and the deity was represented by a

disinterested guardian, necessary pleas against his

contention could have been raised by the guardian, and it

is likely that some evidence would also have been given.

The appellant seeks to cover up his default by saying that

2180

the suit was one under O. 1, R. 8 of the Code of Civil

Procedure, and that the Hindu public was joined and the

Deity was adequately represented. In a suit of this

character, it is incumbent to have all necessary parties, so

that the declaration may be effective and binding. It is

obvious enough that a declaration given against the

interests of the deity will not bind the Deity, even though

the Hindu Community as such may be bound. The appellant

would have avoided circuity of action, if he had acceded to

the very proper request of the respondents to bring on

record the Deity as a party. He stoutly opposed such a

move, but at a very late stage in this court he has made an

application that the Deity be joined. It is too late now to

follow the course adopted by the Privy Council in 52 Ind

App 245: (AIR 1925 PC 139) and Kanhaiya Lal Vs. Hamid

Ali, 60 Ind App 263: (AIR 1933 PC 198 (1),........."

2128. The plaintiffs (Suit-4) have sought a relief of eviction

of idol from the building in dispute. The idol in question is a

Deity and a juridical person in law. That being so, if a relief is

sought against the idol, a juridical person, its impleadment was

necessary as it is a necessary party. The consequences of non

impleadment of a necessary party is that the suit cannot proceed

and deserve to be dismissed on this ground. The principle in this

regard is that relief cannot be granted in a suit against a person

who has no opportunity to place his case before the Court as one

cannot be condemned unheard.

2129. In ordinary circumstances, we ought to have dismissed

Suit-4 for non impleadment of necessary party. However, there

are certain peculiar facts and circumstance in the present sets of

cases. There was a serious dispute regarding the status of the

2181

idol in question. Besides, four suits have been clubbed. The

legal person i.e. Deity is fully represented in this Court and has

placed its case in the best possible manner through a battery of

learned counsels and we find nothing more could have been said

if technically the impleadment of idol would have been there in

Suit-4. The basic principle that no one should be condemned

unheard therefore does not exist in the case in hand. If a relief is

to be given to a plaintiff, an order may not be passed against a

person who is not a party to that suit. This would make at the

best, in case Suit-4 is to be allowed, not to grant relief in respect

of the eviction of the idol from the premises in question but

would have no impact on the matter of declaration.

2130. After due and careful consideration of the matter and

having placed this question before the learned counsels, who

argued the matter as to what else could have been their defence

if the idol would have been a party in Suit-4, they could not

place before us on behalf of the idol, who is plaintiff no.1 in

Suit-5 and is placing his case before us to which they could not

reply or add anything.

2131. We, accordingly, in the facts and circumstances and

discussion made above, decide issue 21 (Suit-4) in negative i.e.

in favour of the plaintiff (Suit-4) and hold that the suit is not

bad for non-joinder of the Deities.

2132. Issues no.2 and 6 (Suit-5) relates to the capacity of

plaintiff no.3 to file suit on behalf of plaintiffs no. 1 and 2 as

their next friend and relates to the maintainability of the suit in

the manner it has been filed or even if plaintiffs no.1 and 2 are

held to be juridical person, are entitled to sue or be sued in their

own name.

2133. Now, so far as the issue No.2 and 6 ( Suit-5) are

2182

concerned, we really find it surprising that there is no averment

at all in the entire plaint that plaintiff no. 3 is a worshipper of

lord Ram and that of plaintiffs 1 and 2. Besides it is also not the

case that there is no Shebait at all or the Shebait, if any, is not

managing the affairs properly.

2134. An idol or deity in Hindu law, as we have already

discussed,is a juridical person and can file a suit for protection

of its rights etc. and similarly can also be sued. Not being a

natural person, it cannot litigate on its own as but its interest has

to be watched through a natural person. Here we come up to the

concept of Shebait or Mahant. He look after the interest of the

idol or deity, can sue or be sued. Where the suit is in respect of

the rights of the idol, it is to be filed in the name of the idol

through the concerned Shebait or Mahant who is held to be the

manager of such deity, under an obligation to look after its

interest. No specific procedure in this regard has been mentioned

in the Code of Civil Procedure. However, by process of

interpretation and by judicial precedence the Courts have taken

recourse to the principles of Order 32 Rule 1 CPC. In B.K.

Mukherjea's Hindu Law of Religious and Charitable Trusts

(supra) at page 265 the learned author clearly opined that a deity

being a juristic person has undoubtedly, right to institute a suit

for protection of its interest. So long as there is a Shebait in the

office functioning properly, the rights of the deity, as stated

above, practically lie dormant and it is the Shebait alone who

can file suits in the interest of the deity. When, however, the

Shebait is negligent or is himself the guilty party against whom

the deity needs relief, it is open to worshippers or other persons

interested in the endowment to file suit for the protection of the

Debutter. It is open to the deity also to file a suit through some

2183

person as next friend for recovery of possession of property

improperly alienated or for other relief. Such a next friend may

not unoften be a person who as a prospective Shebait or a

worshipper is personally interested in the endowment.

2135. The learned author has further considered as to how

we can distinguish the two classes of cases and ascertain

whether it is a suit by the deity or by the worshipper personally.

He has answered this question observing that it would certainly

depend upon the nature of the suit and the nature of the relief

claimed. If the suit is not in the name of the deity, it cannot be

regarded as a deity's suit, even though the deity is to be

benefited by the result of the litigation. It would be the personal

suit of the worshipper, the family members or the prospective

Shebait, as the case may be. These persons are not entitled to

claim any relief for themselves personally, e.g., by way of

recovery of possession of the property improperly alienated or

adversely possessed by a stranger.

2136. It appears that there was some variation in the opinion

of different courts on this aspect as to how and in what manner a

suit be filed on behalf of a deity or idol. Sri Jilani and other

learned counsels appearing for Sunni Board as well as other

Muslim parties have not gone to the extent of denying any right

of filing a suit by a deity and it is not, in fact, disputed that a

deity consecrated in accordance with Shashtrik law is a juridical

person entitled to sue or be sued and such a suit can be filed

through its Shebait or Mahant, as the case may be. Their

objection is that plaintiffs no.1 and 2 are not deity in accordance

with recognised tenets of Hindu law and, therefore, Suit-5 itself

is not maintainable. This issue we have already considered and

replied.

2184

2137. In continuation, the next objection is that plaintiffs

no.1 and 2 cannot be represented through the next friend i.e., the

plaintiff no.3, and Suit-5 by plaintiffs no.1 and 2 through

plaintiff no.3 as next friend is not in accordance with law, hence

not maintainable.

2138. The defendant no. 4 though has pleaded in para 1 of

his written statement (Suit-5) that there is no installation of deity

within the premises of the disputed place of worship and that the

idol in question was stealthily and surreptitiously kept inside the

mosque in the night of 22nd/23rd December, 1949 and, therefore,

are not a juridical person being not a deity but nothing has been

brought on record to prove it. Similar assertions have also been

made in paras 6, 11, 12, 14, 18 and 21 of the written statement

of defendant no. 4, Suit-5. Regarding plaintiff no. 1 (Suit-5) the

assertion that it is a Chal Vigrah and was kept in the night of

22nd/23rd December, 1949 after due ceremonies and the fact that

since 23rd December, 1949 it is continuously being worshiped

by Hindus leaves no option for us but to disagree with the stand

of the defendant no. 4 (Suit-5) that it is not a deity in terms of

Hindu Shastras and, therefore, not a juridical person. So far as

the plaintiff no. 2 is concerned, the discussion made above make

it clear that a place by itself can also be a deity for worship of

Hindus and in such a case being a Swambhu and permanent

deity, no particular kind of consecration is required to be

observed in such a case. Subject to our findings in respect to the

issues whether the disputed site is the place of birth of Lord

Rama or that it is believed to be the place of birth of Lord Rama

by Hindus for time immaterial, the issues which are separately

under consideration, if answered in affirmance, i.e., in favour of

Hindu parties, we have no hesitation in holding that the

2185

plaintiffs no. 1 and 2 cannot be denied the status of deity and,

therefore, are juridical persons as known in Hindu laws. It is not

the case of any of the parties that there is or there was any

shebait appointed or working to look after or managing the

plaintiffs no. 1 and 2. The idol while existing on Ram

Chabutara, its worship etc. was being managed by the priest of

Nirmohi Akhara as claimed by them and also not seriously

disputed by other Hindu parties but after its shifting in the

disputed building under the central dome, there is nothing on

record to show that any person as shebait of plaintiff no. 1

continued to look after.

2139. So far as plaintiff no. 2 is concerned, we find that there

is no pleading by the defendants no. 4 and 5 or any other

muslim party that there was any shebait to manage the affairs of

plaintiff no. 2. The plaintiff no. 3 has stated in para 1 that he is a

Vaishnav Hindu. The Vaishnavas are those who worship Lord

Rama. He was allowed to represent the plaintiffs no. 1 and 2 as

their next friend by Civil Judge while entertaining the suit in

question vide order dated 01.07.1989. After death of Sri D.N.

Agrawal he was replaced by Sri T.P.Verma vide order of the

Court who was made next friend of plaintiffs no. 1 and 2.

Recently Sri Triloki Nath Pandey has been allowed as next

friend to represent plaintiffs no. 1 and 2. In view of the law laid

down by the Apex Court in Bishwanath Vs. Sri Thakur Radha

Ballabhi (supra) in the absence of Shebait, a suit on behalf of a

Hindu idol can be filed and pursued by a worshipper as an idol's

next friend.

2140. A suit on behalf of a minor or a Deity can be filed

through next friend only if the above conditions are satisfied.

This could have been a serious deficiency in respect to

2186

maintainability of Suit-5 through next friend but we have

noticed that here is not a case where Suit-5 was entertained on

behalf of plaintiffs 1 and 2 through next friend without the

intervention of the Court. The record shows that before

entertaining the suit, the Court considered the prayer of the

plaintiff 3 to permit him to represent the plaintiffs no.1 and 2 as

next friend. The Civil Judge passed order on 01.07.1989

permitting the plaintiff no.3 to present the said suit as next

friend of the plaintiffs no.1 and 2. The said order of the Civil

Judge has never been challenged by any of the parties and the

same has attained finality. In fact after the death of Sri Deoki

Nandan Agarwal the then next friend of plaintiffs no.1 and 2, an

application was filed for another next friend by Sri T.P.Verma

which was allowed by this Court. Thereafter when a further

change was requested, another application was filed on behalf of

Kamleshwar Nath to represent as next friend of plaintiffs 1 and

2 but it was dismissed by this Court against which an appeal

was taken to the Apex Court and vide judgment dated

08.02.2010, the Apex Court permitted him to be impleaded and

pursue the present suit as next friend of plaintiffs no. 1 and 2

subject to certain conditions, which he complied with and

accordingly he was substituted as next friend by this Court's

order dated 18.03.2010.

2141. In view of the above discussion, we are of the view

that Suit-5 cannot be held not maintainable merely on account

of some defects in pleading with respect to the status of the next

friend or Shebait. We decide Issues no. 2 and 6 (Suit-5) in

negative i.e. in favour of the plaintiffs (Suit-5). We hold that

the suit is maintainable and plaintiff no. 3 can validly represent

plaintiffs no. 1 and 2 as their next friend and is competent on

2187

this account.

(H) Limitation

2142. In this category fall four issues namely Issue No. 3

(Suit-4); 10 (Suit-1); 9 (Suit-3); and 13 (Suit-5).

2143. The above issues though pertain to a common statute

of “limitation” but since the situation, relevant facts and

arguments cover different angles in all the cases, we propose to

deal the said four issues separately and suitwise.

2144. First we proceed with the leading case, i.e., Issue No.

3 (Suit-4) which reads as under:

“Is the suit within time?”

2145. The plaintiffs in para 23 of the plaint have alleged that

the cause of action arose on 23rd December, 1949 when the

Hindus unlawfully and illegally entered the mosque, desecrated

the same by placing idols therein, caused obstruction and

interference with the rights of Muslims in general in offering

prayers and other religious ceremonies in the mosque, caused

obstructions to Muslims going to the grave-yard and reciting

Fatiha to the dead persons buried therein; the said injury is

continuing and renewed de-die-indiem; the cause of action

against defendants 5 to 9 arose on 29th December, 1949 on

which date the defendant No. 7 attached the mosque in suit and

handed over possession to Receiver (defendant No. 9) who

assumed charge of the same on 5th January, 1950 and the State

Government and its officials, defendants No.6 to 8, failed in

their duty to prosecute offenders and safeguard interest of

Muslims. Para 23 of the plaint reads as under:

“23. That cause of action for the suit against the Hindu

public arose on 23.12.1949 at Ajodhiya District Faizabad

within the jurisdiction of this Hon'ble Court when the

2188

Hindus unlawfully and illegally entered the mosque and

desecrated the mosque by placing idols in the mosque thus

causing obstruction and interference with the rights of the

Muslims in general, of saying prayers and performing

other religious ceremonies in the mosque. The Hindus are

also causing obstructions to the Muslims going in the

grave-yard (Ganj-Shahidan) and reciting Fatiha to the

dead persons buried therein. The injuries so caused are

continuing injuries and the cause of action arising

therefrom is renewed de-die-indiem and as against

defendants 5 to 9 the cause of action arose to the plaintiffs

on 29.12.1949 the date on which the defendant No. 7 the

City Magistrate Faizabad-cum-Ajodhiaya attached the

mosque in suit and handed over possession of the same to

Sri Priya Dutt Ram defendant no. 9 as the receiver, who

assumed charge of the same on January 5, 1950.

The State Government and its officials defendants 6

to 8 failed in their duty to prosecute the offenders and

safeguard the interests of the Muslims”

2146. The defendants No.1 and 2 in para 23 of written

statement dated 12th March, 1962 have denied it. In additional

pleas, para 28 they have pleaded that the suit is time barred. The

plaintiff's were not in possession of the disputed property since

1934. The relevant pleading is as under :

“23. That para 23 of the plaint is wrong. The suit is

hopelessly time barred. The Muslims have not been in

possession of the property in dispute since 1934, and

earlier.”

“28. That the suit is time barred as the plaintiffs were

never in possession over the temple in dispute since 1934,

2189

and the Hindus were holding it adversely to them, overtly

and to their knowledge.”

2147. Another written statement filed on behalf of

defendants No. 1 and 2 dated 25th January, 1963 is similarly

worded in para 23 and 28 thereof.

2148. The defendants No. 3 and 4 in their written statement

dated 22nd August, 1962, while denying para 23 of the plaint in

para 23 of the written statement, have stated in para 34 (part of

additional pleas) that the suit is barred by time.

2149. The defendant No.10 in his written statement dated

15th February, 1990 has denied para 23 of the plaint and in

additional pleas has alleged in para 29 and 79 that the suit is

barred by time. Para 79 of the written statement says:

“79. That the suit as framed is a suit for declaration only

and the relief for delivery of possession is in the words that

“In case in the opinion of the court . . . . . ” which means

that the plaintiffs are not seeking relief of possession and

leave it to the court to grant possession suo motu. The

reason is obvious that the suit was barred by limitation and

so specific prayer has not been made.”

2150. Though a replication has been filed to this written

statement of defendant No.10 but para 79 was inserted in the

written statement pursuant to the amendment allowed by Court's

order dated 23rd November, 1992 and there is no reply to para 79

of the written statement. The part of relief sought in the plaint

i.e. para 24 (bb) is also pleaded barred by time in para 12,

additional written statement dated 12th September, 1995 of

defendant No.10 (Baba Abhiram Dass, substituted by defendant

No.13/1 vide Court's order dated 27th January, 1992). In written

statement dated 20.7.1968, paras 23, 27 and 28 he pleads that

2190

the suit is hopelessly time barred. The defendant No.13/1 in his

separate written statement dated 4th December, 1989 in para 23

and 39, while asserting that the suit is barred by time, has

averred:

“23. That paragraph 23 of the plaint is denied. The cause

of action pleaded therein is fictitious. It could in no case be

said to be renewed de-die-indiem, inasmuch as the

imaginary injury complained of does not constitute a

continuing injury or a continuing wrong in the eye of law.

The suit is hopelessly time-barred by the limitation of 6

years prescribed by Article 120 of the Schedule to the

Indian Limitation Act, 1908, which squarely applies to the

allegations and the cause of action pleaded in the plaint,

though the answering defendant submits that there was in

fact no cause of action for the suit, and the suit is only a

malicious exercise in futility which is fit to be dismissed as

such.”

“39. That the relief for possession by the removal of the

idols and other articles of Hindu worship, is in fact and in

law a relief for mandatory injunction, and is barred the 6

years' limitation prescribed by Article 120 of the Schedule

to the Indian Limitation Act, 1908. Otherwise too a person

other than the Mutwalli of a Mosque cannot sue for its

possession, and can only sue for a declaration that it is a

mosque and, if out of possession or dispossessed, that its

possession be made over to the Mutwalli, and to such suit

also Article 120 applied, and neither of the Article 142 or

144 of the Schedule to the Indian Limitation Act, 1908 had

any application. Further, on the pleas raised in the plaint,

the plaintiffs having claimed to have been effectively and

2191

completely dispossessed by the Preliminary order of

attachment and appointment of a Receiver to maintain the

worship of the Deity inside the three-domed building,

passed on 29.12.1949 under Section 145 of the Code of

Criminal Procedure, 1898, the suit is barred by Article 14

of the Schedule to the Indian Limitation Act, 1908.

Inasmuch as the Plaintiffs have claimed that they were

completely and effectively ousted from the building and

the premises in suit by the Defendants act of 'placing' of

Idols within the 'mosque', on December 23, 1949, their

cause of action was finally complete and closed that day,

and did not recur thereafter, according to their own

allegations. It could not be said to arise thereafter die-in-

diem, as it was not the case of a continuing wrong, within

the meaning of Section 23 of the Indian Limitation Act,

1908. In any view of the matter the suit is hopelessly barred

by limitation, even on the allegations of the Plaint which is

liable to be rejected under Order 7, Rule 11 of the Code of

Civil Procedure, 1908, and Section 3 of the Indian

Limitation Act, 1908, casts a duty on the Court to dismiss

the suit and not to proceed with its trial any further.”

2151. Defendant No.17 in para 18 of additional written

statement dated 14th September, 1995 has pleaded that the suit is

barred by time in the following words :

“18. That the suit as framed is a suit for declaration and

the relief for delivery of possession has not been made in

specific terms as the said relief was time-barred on the

date of institution of the suit. Now by way of amendment,

relief of possession from statutory receiver is being sought

and as such the plaintiffs are stopped from claiming

2192

possession of the property at this stage and the said claim

has also become time-barred.”

2152. Similarly, defendant No.18 in para 23 of the written

statement has denied and in para 28 has said that the suit is

barred by limitation; Defendant No.20 has denied para 23 and in

para 48 has pleaded that the suit is barred by limitation.

2153. Sri P.N.Mishra, Advocate, assisted by Miss Ranjana

Agnihotri appearing on behalf of defendant No.20 submitted

that Sri Zahoor Ahmad-plaintiff No.10 (since deceased) was

impleaded as defendant No.1 in Suit-1. Mohammad Faiq-

plaintiff No.4 (since deceased) was defendant No.3 in Suit-1 and

defendant No.7 in Suit-3. Similarly, plaintiff No.10/1 Farooq

Ahmad substituted after the death of the plaintiff No.10 Zahoor

Ahmad is defendant No.11 in Suit-3. In the plaint (Suit-4), the

plaintiffs have taken a stand in para 11 that the disputed building

was in peaceful possession of Muslims and they used to recite

prayer therein till 23rd December, 1949 when a large crowd of

Hindus with mischievous intention of destroying, damaging or

defiling the said mosque and thereby insulting Muslim religion

and religious feelings, entered and desecrated the mosque by

placing idols therein. Shri Mishra pointed out that plaintiff

No.4-Mohd. Faiq and plaintiff No.10-Zahoor Ahmad had filed

written statement dated 21st February, 1950 in Suit-1 and in para

22 therein have pleaded that Namaz was offered in the building

in dispute till 16th December, 1949 and till then there was no

idol in the said building; if it has been placed subsequently in

the disputed building, the same was wholly illegal. Similarly,

the plaintiff No.4 along with two others had filed written

statement dated 28.03.1960 in Suit-3 and in para 26 thereof he

has pleaded that Namaz was offered in the disputed building till

2193

16th December, 1949 and upto that time there was no idol inside

the building. The above stand has been changed by the said two

plaintiffs in Suit-4 though it is a futile and illegal attempt; will

not bring the suit in dispute within the limitation prescribed

therefor.

2154. Sri Mishra contended that Suit-4 was presented and

filed in the court on 18th December, 1961. Plaintiff No.1 (Suit-

4), who was impleaded as defendant No.9 (Suit-3) pursuant to

the Court's order dated 23rd August, 1989 on application for

impleadment, made a statement through his counsel that he is

adopting written statement already filed on behalf of the

defendants No.1 to 5 in Suit-1 and the defendants No.6 to 8 in

Suit-3. Sunni Central Waqfs Board was also impleaded as

defendant No.10 in Suit-1 pursuant to the Court's order dated 7th

January, 1987. Thus the stand taken by plaintiffs No. 4 and 10 is

binding on plaintiff No.1. The change in stand in Suit-4 with

respect to the date on which last Namaz was offered in the

disputed building cannot be pleaded otherwise than what they

have already pleaded. They are estopped from changing the

stand and cannot be permitted to cover up the deficiency in

regard to limitation by such altered stand.

2155. It is contended by Sri P.N. Misra that in the earlier

pleadings of Muslim parties their specific case was that last

Namaz was offered on 16.12.1949 hence the subsequent

improvement in the later pleadings shall not improve upon their

case. They are bound by the stand they have taken in earlier

pleadings. He argued that post litem motum is inadmissible on

the ground that the same thing must be in controversy before

and after the statement is made. The statement in Suit-4,

therefore, is inadmissible where improving upon their earlier

2194

stand it has been pleaded that Namaz was offered lastly on

22.12.1949. Sri Misra placed reliance on a decision of the Apex

Court in State of Bihar & Ors. Vs. Sri Radha Krishna Singh

(Supra) and in particular para 132 and 138 which read as under:

"132. Same view was taken by a full Bench of the Madras

High Court in Seethapti Rao Dora v. Venkanna Dora &

Ors, (1922) ILR 45 Mad 332: (AIR 1922 Mad 71). Where

Kumaraswami Sastri, J. Observed thus:

"I am of opinion that Section 35 has no

application to judgments, and a judgment which

would not be admissible under Sections 40 to 43 of

the Evidence Act would not become relevant merely

because it contains a a statement as to a fact which is in

issue or relevant in a suit between persons who are

not parties or privies. Sections 40 to 44 of the

Evidence Act deal with the relevancy of judgments in

Courts of justice."

"138. In Hari Baksh v.Babu Lal & Anr., AIR 1924 PC

126, their Lordships observed as follows.

"It appears to their Lordships that these

statements of Bishan Dayal who was then an interested

party in the disputes and was then taking a position

adverse to Hari Baksh cannot be regarded as evidence

in this suit and are inadmissible."

2156. Referring to the reliefs sought in Suit-4, it is

contended by Sri Mishra that for the purpose of limitation, Suit-

4 would be governed by Article 120 of Limitation Act, 1908,

(hereinafter referred to as “L.A. 1908”). The period prescribed

therein is only six years. Admittedly the suit has been filed by

the plaintiffs after more than 12 year. Therefore, it is liable to be

2195

dismissed on the ground of limitation itself. He argued that

though presently the L.A. 1908 has been repealed by Limitation

Act, 1963, (hereinafter referred to as “L.A.1963”), but for the

purpose of ascertaining as to whether the suit in question was

filed within the period prescribed in law, the statute as it was

enforced on the date of filing of the suit would have to be

considered. Applying Article 120 of L.A. 1908, Suit-4 is

hopelessly barred by limitation.

2157. The submission is that in a suit for declaration, only

Article 120 of L.A. 1908 applicable since no other Article apply.

Even if the date of cause of action, as mentioned in para 23 of

the plaint, is taken to be correct, the suit in question having been

filed after expiry of six years, is hopelessly barred by limitation.

2158. He also submitted that there is no question of

continuing wrong. It is not a case where the cause of action

accrued de die indiem i.e. every day. The suit in question cannot

be treated to be within limitation. Alternatively he contended

that even if Article 120 is found inapplicable, due to Article 142

or 144 of L.A. 1908, the cause of action having arisen on 16th

December, 1949, and, not being a continuous cause of action

running de die indiem, the suit in question is barred by

limitation having been filed after expiry of 12 years i.e. 2 days

later after expiry of 12 years. Sri Mishra submits that once the

suit stands barred by limitation, there is no question to consider

or apply any sympathy or equity in the matter. A suit, which is

barred by limitation, cannot be held within time for trial on any

such ground like equity, conscience, justice, sympathy, leniency

etc.

2159. He further pleaded that Articles 142 and 144 of L.A.

1908 are mutually exclusive. In any case, both have no

2196

application to the dispute in hand in view of the relief sought by

the plaintiffs. The party to a suit, if has taken in an earlier

proceedings, a particular stand, is estopped from taking a

different stand in a subsequent proceeding. It amounts to

approbate and reprobate at the same time, which is

impermissible. In such a matter, doctrine of 'election' would

apply which binds the party to adhere to the first stand taken and

not to take advantage of subsequent stand, which is an after

thought.

2160. To attract Article 142 of L.A. 1908, possession of

the defendants was necessary on the date of suit filed by it.

There are two words used in Article 142 namely

“discontinuation from possession” and “dispossession”. Both

have different meaning and context. Since the defendants were

not in possession on the date the suit was filed, Article 144 of

L.A. 1908 would not come into picture.

2161. Sri Mishra further submits that the order of

attachment passed as a preliminary order under Section 145

Cr.P.C. would make no difference, inasmuch as, a Receiver

appointed by the Magistrate in proceedings under Section 145

Cr.P.C. is not adversary to any of the party but he holds and

receive the property, entering into the shoes of the original and

real owner. Hence the date from which receiver is appointed,

would not confer any advantage to the plaintiffs in the present

case so as to bring the matter within limitation.

2162. The above arguments have been buttressed by the

learned counsel Sri Mishra from various angles relying on a

catena of decisions i.e.: Shyam Sunder Prasad & Others Vs.

Raj Pal Singh & Anr. 1995(1) SCC 311, Chairman & M.D.,

N.T.P.C. Ltd. Vs. M/s Reshmi Construction Builders &

2197

Contractors AIR 2004 SC 1330, Draupadi Devi & Ors. Vs.

Union of India & Ors. (2004) 11 SCC 425, Mohima Chundar

Mozoomdar & Ors. Vs. Mohesh Chundar Neogi & Ors. 16

Indian Appeals (1888-1889) 23, Nawab Muhammad

Amanulla Khan Vs. Badan Singh & Ors. 16 Indian Appeals

(1888-1889) 148, Jamal Uddin & Anr. Vs. Mosque at

Mashakganj & Ors. AIR 1973 Allahabad 328, Raja Rajgan

Maharaja Jagatjit Singh Vs. Raja Partab Bahadur Singh AIR

1942 Privy Council 47, Mt. Bolo Vs. Mt. Koklan and others

AIR 1930 Privy Council 270, Partab Bahadur Singh,

Taluqdar Vs. Jagatjit Singh AIR 1936 Oudh 387, Yeknath Vs.

Bahia AIR 1925 Nagpur 236 (1), Rajah of Venkatagiri Vs.

Isakapalli Subbiah & Ors. ILR (26) Madras 410, Abinash Ch.

Chowdhury Vs. Tarini Charan Chowdhury and others AIR

1926 Cal. 782, The Firm of Eng Gim Moh Vs. The Chinese

Merited Banking Co. Ltd. and another AIR 1940 Rangoon

276, Annamalai Chettiar and others Vs. A.M.K.C.T.

Muthukaruppan Chettiar & anr. AIR 1931 Privy Council 9,

Mst. Rukhmabai Vs. Lala Laxminarayan & Ors. AIR 1960

SC 335, Garib Das and others Vs. Munshi Abdul Hamid and

others AIR 1970 SC 1035, State of Bihar & Ors. Vs. Sri

Radha Krishna Singh (supra), C. Beepathumma and others

Vs., Valasari Shankaranarayana Kadambolithaya and others,

AIR 1965 SC 241.

2163. Sri M.M.Pandey, Advocate on behalf of defendant

no.2/1 Mahant Suresh Das submitted that the property is under

attachment. There is no cause of action for claiming the relief of

possession and hence a suit for declaration lie which attract

limitation under Article 120. He placed reliance on Deo Kuer &

Anr. Vs. Sheo Prasad Singh & Anr. AIR 1966 SC 359 and

2198

submitted that since the suit has been filed after more than 11

years, it is highly barred by limitation. He also submitted that

limitation once start running, shall not stop and placed reliance

on Bank of Upper India Vs. Mt. Hira Kuer & Ors. AIR 1937

Oudh 291. Explaining "right to sue", he placed reliance on

Annamalai Chettiar and others Vs. A.M.K.C.T.

Muthukaruppan Chettiar & anr (Supra) and Mt. Bolo Vs.

Mt. Koklan and others (Supra).

2164. Besides above, he also placed reliance on Partab

Bahadur Singh, Taluqdar Vs. Jagatjit Singh (Supra), C.

Natrajan Vs. Ashim Bai & Anr. AIR 2008 SC 363; Shyam

Sunder Prasad (supra); Panna Lal Biswas Vs. Panchu Raidas

AIR 1922 Cal 419; Bhinka and others Vs. Charan Singh

1959 (Supp.) 2 SCR 798, Abdul Halim Khan Vs. Raja Saadat

Ali Khan & Ors. AIR 1928 Oudh 155 and Brojendra Kishore

Roy Chowdhury & others Vs. Bharat Chandra Roy and

others AIR 1916 Cal. 751.

2165. Sri G.Rajagopalan, Senior Advocate, appearing on

behalf of defendant No.12 also towing the same line contended

that the suit is only for declaration and there is no prayer for

possession. It is covered by Article 120 of the L.A.1908 hence

barred by limitation. Referring to Order VII Rule 6 C.P.C., he

submits that the plaintiffs when filed the suit beyond the period

of limitation must state the grounds upon which exemption from

such law is claimed. No such ground or exemption has been

stated in the plaint therefore, it is ex facie barred by limitation.

He also contended that the plaintiffs have also not sought any

exemption under Public Waqf (Extension) of Limitation Act,

1959 and even otherwise the said Act would not be applicable to

the plaintiffs.

2199

2166. Sri Ravi Shankar Prasad, Senior Advocate, contended

that the suit of plaintiffs-Muslims is actually a suit for

immoveable property governed by Article 120 of L.A. 1908 and

neither Article 142 nor 144 is applicable. Any attempt to

construe the suits filed by the plaintiffs as anything but a suit for

possession of immovable property is incorrect. They are not in

possession of the property in dispute since 22/23rd December,

1949 and therefore, the limitation was only for six years which

having elapsed the suit is barred by limitation. He placed

reliance on Raja Ramaswamy Vs. Govinda Ammal, AIR 1929

Madras 313 (Para 19 to 25); Pierce Leslie & Co. Ltd. Vs. Miss

Violet Ouchterlony Wapshare AIR 1969 SC 843 (Para 7);

Janki Kunwar Vs. Ajit Singh (1888) ILR 15 Cal 58 (Para 8);

Jafar Ali Khan & Ors. Vs. Nasimannessa Bibi AIR 1937 Cal

500 (Para 7).

2167. On the contrary, Sri Siddiqui refuting all the

submission vehemently contended that here is a continuous

cause of action since the proceedings of 145 Cr.P.C. have not

been finalized so far. The deprivation for the Muslims is on day-

to-day basis and that it was a suit for possession wherein the

limitation would commence from 22/23 December, 1949 and

the suit having been filed on 18th December, 1961 is well within

time. He also cited certain authorities namely Kali Prasad Misir

and others Vs. Harbans Misir 1919 All 383; Mata Palat Vs.

Beni Madho AIR 1914 All 184; Prajapati and others Vs. Jot

Singh and others AIR 1934 All 539; Jagat Mohan Nath Sah

Deo Vs. Pratap Udai Nath Sah Deo & Ors. AIR 1931 PC 302;

and Suryanarayana & Ors. Vs. Bullayya & Ors. AIR 1927

Madras 568.

2168. Before coming to the question as to whether Suit-4

2200

(leading suit) is barred by limitation or not, it would be

appropriate, first to consider, the relevant provisions, namely,

Article 120, 142 and 144 of L.A. 1908 and a few other relative

provisions to find out scope, effect and the circumstances in

which they would operate since it is this Act which was in

operation at the time when Suit-4 was filed.

2169. The nature of the statute on limitation has been

considered in C. Beepathuma (supra) and it say:

“There is no doubt that the Law of Limitation is a

procedural law and the provisions existing on the date of

the suit apply to it.”

2170. Before the British, during the period when Muslims

ruled the Country (in particular Oudh), it appears that personal

laws governed all matters. The Muslim law does not recognize

limitation; while in Hindu personal laws, on certain aspects, in

different schools, some provisions for limitation are prescribed

which are not common to all the Hindus. Hindu Law recognizes

both prescription and limitation while Muslim jurisprudence

recognises neither of them. In some of the Smritis a period of 20

years was prescribed for acquisition of title by prescription. It

appears that since agriculture was the main occupation of the

people, Smritis concentrated more on land and on the rights

therein.

2171. Thus prior to 05.05.1859 there was no common law

of limitation applicable to whole of India. The Provincial Courts

in each Presidency established by East India Company were

governed by certain Regulations, like; Regulation III of 1793

(Bengal); Regulation II of 1802 (Madras); Regulation I of 1800

(Bombay) and the Acts particularly applicable to them like Act I

of 1845; Act XIII of 1848; Act XI of 1859. The Non-Regulation

2201

Provinces i.e. Punjab and Oudh etc. were governed by Codes of

their own and sometimes by Circular Orders of Judicial

Commissioner. The three Supreme Courts established by Royal

Charter adopted the English law of limitation.

2172. Cause of action with respect to the statutes of

Limitation as applicable in England in one of the earliest cases

came to be considered in 1849 as to when it would run. Privy

Council in The East India Company Vs. Oditchurn Paul 1849

(Cases in the Privy Council on Appeal from the East Indies)

43 held that the Statute runs from the time of breach, for that

constitutes the cause of action. With reference to the East India

Company, it observed that the statute of limitation was extended

to India by Indian Act No.XIV of 1840. The appeal against the

Supreme Court of Judicature at Fort William in Bengal

(Calcutta) was allowed by Privy Council. It also observed

therein if the matter would have been tried by Hindu law, the

limitation of suits, under the Hindu law, would have been

twelve years.

2173. The first codified statute was Act No. XIV of 1859,

enacted to amend and consolidate laws relating to limitation of

suits. This Act received the assent of Governor General on 5th

May, 1859. It was repealed by Act No. IX of 1871, Act XV of

1877 and thereafter by Act IX of 1908 (i.e. L.A. 1908).

Presently, even L.A. 1908 has been repealed and the Courts in

India are now governed by Limitation Act, 1963 (i.e. L.A.

1963).

2174. Act XIV of 1859 provided limitation of suits only.

Section I, Clauses12 and 16, said :

“12. To suits for the recovery of immovable property or of

any interest in immovable property to which no other

2202

provision of this Act applies- the period of twelve years

from the time the cause of action arose.”

“16. To all suits for which no other limitation is hereby

expressly provided- the period of six years from the time

the case of action arose.” (emphasis added)

2175. Sections XI, XII, XV and XVI of the Act XIV of

1859 read as under:

"XI. If, at the time when the right to bring an

action first accrues, the person to whom the right

accrues is under a legal disability, the action may be

brought by such person or his representative within the

same time after the disability shall have ceased as would

otherwise have been allowed from the time when the cause

of action accrued, unless such time shall exceed the period

of three years, in which case the suit shall be commenced

within three years from the time when the disability ceased;

but, if, at the time when the cause of action accrues to any

person, he is not under a legal disability, no time shall be

allowed on account of any subsequent disability of such

person or of the legal disability of any person claiming

through him."

"XII. The following persons shall be deemed to be

under legal disability within the meaning of the last

preceding Section-married women in cases to be decided

by English law, minors, idiots, and lunatics."

"XV. If any person shall, without his consent, have

been dispossessed of any immovable property otherwise

than by due course of law, such person, or any person

claiming through him, shall, in a suit brought to recover

possession of such property, be entitled to recover

2203

possession thereof notwithstanding any other title that may

be set up in such a suit, provided that the suit be

commenced within six months from the time of such

dispossession. But nothing in this Section shall bar the

person from whom such possession shall have been so

recovered, or any other person, instituting a suit to

establish his title to such property and to recover

possession thereof within the period limited by this Act."

"XVIII. All suits that may be now pending, or that

shall be instituted within the period of two years from the

date of the passing of this Act, shall be tried and

determined as if this act had not been passed; but all suits

to which the provisions of this Act are applicable that shall

be instituted after the expiration of the said period shall be

governed by this Act and no other law of limitation, any

Statute, Act, or Regulation now in force notwithstanding."

2176. Section I of Act XIV of 1859 says that no suit shall

be maintained in any Court of Judicature within any part of the

British territories in India in which this Act shall be in force,

unless the same is instituted within the period of limitation

hereinafter made applicable to a suit of that nature, any Law or

Regulation to the contrary notwithstanding. The territory upon

which the said Act was made operative, is provided in Section

XXIV as under:

"XXIV. This Act shall take effect throughout the

Presidencies of Bengal, Madras, and Bombay, including

the Presidency Towns and the Straits Settlements; but shall

not take effect in any Non-Regulation Province or place

until the same shall be extended thereto by public

notification by the Governor-General in Council or by the

2204

Local Government to which such Province or place is

subordinate. Whenever this Act shall be extended to any

Non-Regulation Province or place by the Governor-

General in Council or by the Local Government to which

such Province or place is subordinate, all suits which,

within such Province or place, shall be pending at the date

of such notification, or shall be instituted within the period

of two years from the date thereof, shall be tried and

determined as if this Act had not been passed; but all suits

to which the provisions of this Act are applicable that shall

be instituted within such Province or place after the

expiration of the said period, shall be governed by this Act

and by no other law of limitation, any Statute, Act, or

Regulation now in force notwithstanding."

2177. Though Act No. XIV of 1859 was drafted in a

language much more precise than the loose phraseology of

earlier Regulations, but the Privy Council in The Delhi and

London Bank Vs. Orchard, I.L.R. 3 (1876) Calcutta 47 (PC)

observed it as an “inartistically drawn statute”.

2178. Act IX of 1871 extended the scope and made

provisions relating to limitation to suits, appeals and certain

applications to Courts. It received the assent of Governor

General on 24th March, 1871. Second Schedule, First Division,

Articles 118, 143 and 145 provided limitation for possession of

immovable property and read as under :

Description of suit Period of limitation

Time when period begins to run

118 Suit for which no period of limitation is provided elsewhere in this schedule.

Six years When the right to sue accrues.

143 For possession of Twelve The date of the

2205

immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession.

years dispossession or discontinuance.

145 For possession of immovable property or any interest therein not hereby otherwise specially provided for

Twelve years

When the possession of the defendant, or of some person through whom he claims, became adverse to the plaintiff.

2179. Some of the feature of Act IX of 1871 are:

(a) Section-3 defines term 'minor means a person who has not

completed his age of eighteen years;

(b) Section-7 deals with legal disability, Section 9 provides

continuous running of time, Sections 23 and 24 deals with

continued cause of action or renewal of cause of action

and 29 for the first time provides for extinction of rights of

a person in respect to any land or hereditary office and

read as under:

"7. If a person entitled to sue be, at the time the right

to sue accrued, a minor, or insane, or an idiot, he may

institute the suit within the same period after the

disability has ceased, or (when he is at the time of the

accrual affected by two disabilities) after both

disabilities have ceased, as would otherwise have been

allowed from the time prescribed therefor in the third

column of the second schedule hereto annexed. When

this disability continues upto his death, his

representative in interest may institute the suit within the

same period after the death as would otherwise have

2206

been allowed from the time prescribed therefor in the

third column of the same schedule.

Nothing in this section shall be deemed to extend,

for more than three years from the cessation of the

disabilities or the death of the person affected thereby,

the period within which the suit must be brought"

" 9. When once time has begun to run, no subsequent

disability or inability to sue stops it : Provided that

where letters of administration to the stage of a creditor

have been granted to his debtor, the running of the time

prescribed for a suit to recover the debt shall be

suspended while the administration continues."

"23. In the case of a suit for the breach of a contract,

where there are successive breaches, a fresh right to sue

arises, and a fresh period of limitation begins to run,

upon every fresh breach; and where the breach is a

continuing breach, a fresh right to sue arises, and a fresh

period of limitation begins to run, at every moment of the

time during which the breach continues.

Nothing in the former part of this section applies to

suits for the breach of contracts for the payment of

money by instalments, where, on default made in

payment of one instalment, the whole becomes due."

"24. In the case of a continuing nuisance a fresh right

to sue arises, and a fresh period of limitation begins to

run at every moment of the time during which the

nuisance continues."

"29. At the determination of the period hereby limited

to any person for instituting a suit for possession of any

land or hereditary office, his right to such land or

2207

office shall be extinguished."

2180. Drafting of this statute received better observation

from Privy Council in Maharana Futtehsangji Vs. Dessai

Kullianraiji, (1873) LR 1 IA 34 and it commented as a “more

carefully drawn statute”.

2181. The Act gave for the first time some recognition to

the doctrine of prescription by the Legislative Council of India,

viz. the doctrine of extinctive prescription as to land and

hereditary offices, and of positive prescription as to easements.

It lived short and was replaced by Act 15 of 1877 which

extended the principle of extinctive prescription to movable

property and the principle of positive or acquisitive prescription

to profits a prendre.

2182. The Law of Prescription prescribes the period at the

expiry of which not only the judicial remedy is barred but a

substantive right is acquired or extinguished. A prescription by

which a right is acquired, is called an "acquisitive prescription".

A prescription by which a right is extinguished is called

"extinctive prescription". The distinction between the two is not

of much practical importance or substance. The extinction of

right of one party is often the mode of acquiring it by another.

The right extinguished is virtually transferred to the person who

claims it by prescription. Prescription implies with the thing

prescribed for is the property of another and that it is enjoyed

adversely to that other. In this respect it must be distinguished

from acquisition by mere occupation as in the case of res

nullius. The acquisition in such cases does not depend upon

occupation for any particular length of time.

2183. Doctrine of limitation and prescription is based upon

the broad considerations. The first, there is a presumption that a

2208

right not exercised for a long time is non-existent. Where a

person has not been in possession of a particular property for a

long time, the presumption is that he is not the owner thereof.

The reason is that owners are usually possessors and possessors

are usually owners. Possession being normally evidence of

ownership. The longer the possession has continued the greater

is its evidentiary value. The legislature it appears, therefore,

thought it proper to confer upon such evidence of possession for

a particular time a conclusive force. Lapse of time is recognised

as creative and destructive of right instead of merely an

evidence for and against their existence. The other consideration

on which the doctrine of limitation and prescription may be said

to be based is that title to property and matters of right in

general should not be in a state of constant uncertainty, doubt

and suspense. It would not be in the interest of public at large.

The object of the statute of limitation is preventive and not

creative but in a matter covered by the principle of adverse

possession it also creates. It interposes a statutory bar after a

certain period and gives a quietus to suits to enforce an existing

right.

2184. Act XV of 1877 received the assent of Governor

General on 19th July, 1877 and came into force on 1st October,

1877. Articles 120, 142 and 144 , Second Schedule-First

Division of the said Act reads as under :

Description of suit Period of limitation

Time when period begins to run

120 Suit for which no period of limitation is provided elsewhere in this schedule.

Six years When the right to sue accrues.

142 For possession of immovable property, when

Twelve years

The date of the dispossession

2209

the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession.

or discontinuance.

144 For possession of immovable property or any interest therein not hereby otherwise specially provided for.

Twelve years

When the possession of the defendant becomes adverse to the plaintiff.

2185. Section 2 of Act XV of 1877 makes it very clear that

the right to sue if already barred shall not revive by said

enactment. It reads as follows:

"2. All reference to the Indian Limitation Act,

1871, shall be read as if made to this Act; and nothing

herein or in that Act contained shall be deemed to affect

any title acquired, or to revive any right to sue barred,

under that Act, or under any enactment, thereby repealed;

and nothing herein contained shall be deemed to affect the

Indian Contract Act, section 25."

2186. Section 4 makes it obligatory for the Court to

dismiss a suit if presented after the expiry of the period of

limitation. Section 7 deals with the legal disability which is

virtually pari materia with the earlier provision of 1871 Act

though slightly worded differently and says:

"7. If a person entitled to institute a suit or make

an application be, at the time from which the period of

limitation is to be reckoned. A minor, or insane, or an idiot,

he may institute the suit or make the application within the

same period, after the disability has ceased, as would

otherwise have been allowed from the time prescribed

therefor in the third column of the second schedule hereto

2210

annexed.

When he is, at the time from which the period of

limitation is to be reckoned, affected by two such

disabilities, or when, before his disability has ceased, he is

affected by another disability, he may institute the suit or

make the application within the same period after both

disabilities have ceased, as would otherwise have been

allowed from the time so prescribed.

When his disability continues up to his death, his

legal representative may institute the suit or make the

application within the same period after the death as would

otherwise have been allowed from the time so prescribed.

When such representative is at the date of the death

affected by any such disability, the rules contained in the

first two paragraphs of this section shall apply.

Nothing in this section applies to suits to enforce

rights of pre-emption, or shall be deemed to extend, for

more than three years from the cessation of the disability

or the death of the person affected thereby, the period

within which any suit must be instituted or application

made."

2187. Section 9 talks of continuous running of time,

Section 23 deals with the continuing breach of contract and

Section 28 talks of extension of right to property and say:

"9. When once time has begun to run, no subsequent

disability or inability to sue stops it:

Provided that, where letters of administration to the

estate of a creditor have been granted to his debtor, the

running of the time prescribed for a suit to recover the debt

shall be suspended while the administration continues."

2211

"23. In the case of a continuing breach of contract

and in the case of a continuing wrong independent of

contract, a fresh period of limitation begins to run at every

moment of the time during which the breach or the wrong,

as the case may be, continues."

"28. At the determination of the period hereby limited

to any person for instituting a suit for possession of any

property, his right to such property shall be extinguished."

2188. There were several amendments in the above statute

and ultimately it was repealed and replaced by Act 9 of 1908.

2189. L.A. 1908 came into force on 1st January, 1909. It

continued with the provision imposing obligation upon the

Court to dismiss a suit if, while it is instituted, is already barred

by limitation vide Section 23.

2190. The arrangement of above Articles 120, 142 and 144

in L.A. 1908 remained the same, i.e., Articles 120, 142 and 144

and is verbatim:

Description of suit Period of limitation

Time when period begins to run

120 Suit for which no period of limitation is provided elsewhere in this schedule

Six years When the right to sue occurs.

142 For possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession.

Twelve years

The date of the dispossession or discontinuance.

144 For possession of immovable property or any interest therein not hereby otherwise specially provided for.

Twelve years

When the possession of the defendant becomes adverse to the plaintiff.

2212

2191. The doctrine of limitation is founded on

considerations of public policy and expediency. It does not give

a right where there exist none, but to impose a bar after a certain

period to the remedy for enforcing an existing right. The object

is to compel litigants to be diligent for seeking remedies in

Courts of law if there is any infringement of their right and to

prevent and prohibit stale claims. It fixes a life span for remedy

for redressal of the legal injury, if suffered, but not to continue

such remedy for an immemorial length of time. Rules of

limitation do not destroy the right of the parties and do not

create substantive rights if none exist already. However, there is

one exception i.e. Section 28 of L.A. 1908, which provides that

at the determination of the period prescribed for instituting suit

for possession of any property, his right to such property shall

stand extinguished and the person in possession, after expiry of

the such period, will stand conferred title. The law of limitation

is enshrined in the maxim “interest reipublicae ut sit finis

litium” (it is for the general welfare that a period be part to

litigation).

2191A. This statute is based upon two broad

principles. First, there is a presumption that a right not exercised

for a long time is non existent. Where a person has not been in

possession of a particular property for a long time, the

presumption is that he is not the owner thereof. The owners are

usually possessors and possessors are usually owners.

Possession thus being normally evidence of ownership. Longer

the possession has continued the greater is its evidentiary value.

The law therefore has deemed it expedient to confer upon such

evidence of possession for a particular time, a conclusive force.

2192. In Motichand Vs. Munshi, AIR 1970 SC 898, the

2213

Court noticed the maxim vigilantibus non dormientibus jura

subventiunt (the law assists the vigilant not those who sleep over

their rights). Though there is a general principle ubi jus ibi

remedium i.e. where there is a legal right there is also a remedy,

but there are certain exceptions to this general rule.

2193. Mere expiry of limitation could have extinguished

remedy but the principle embodied in Section 28 extinguishes

the right also and thereby makes the said general principle

inapplicable. Once the right of getting possession extinguished it

cannot be revived by entering into possession again [See

Salamat Raj Vs. Nur Mohamed Khan (1934) ILR 9 Lucknow

475; Ram Murti Vs. Puran Singh AIR 1963 Punjab 393;

Nanhekhan Vs. Sanpat AIR 1954 Hyd 45 (FB) and Bailochan

Karan Vs. Bansat Kumari Naik 1999 (2) SCC 310].

2194. In this matter the plaintiffs (Suit-4) have attempted

to bring their case within the precinct of Article 142 and in the

alternative Article 144 while the defendants intend to bulldoze

the plaintiffs by stressing upon to apply Article 120. An attempt

to out class the bar of limitation has also been made by pleading

that the wrong is de-die indium, hence being a continuing

wrong, no obstruction of limitation is there.

2195. Article 120 is completely a residuary provision and

where limitation cannot be found in any other provision, only

then it would be attracted. We can say safely that Article 120

L.A. 1908 would be attracted only when Articles 142 and 144

are inapplicable. We, therefore, at this stage defer to consider

scope and extent of Article 120 so as to be discussed a bit later.

2196. Between the Articles 142 and 144 the later one is a

kind of residuary provision while Article 142 applies in a

specific type of case [See Sidram Lachmaya Vs. Mallaya

2214

Lingaya AIR (36) 1949 Bom. 137 (Para 9); Ranchordas

Vandravandas Vs. Parvatibai 29 I.A. 71 (P.C.)].

2197. A Full Bench of this Court in Bindyachal Chand

Vs. Ram Gharib, AIR 1934 Alld. 993 (FB) held where Article

142 is applicable, Article 144 cannot be applied. First it has to

be seen whether Article 142 applies in the case or not and when

it clearly becomes inapplicable only then resort can be taken to

Article 144.

2198. Article 142 applies where the plaintiff while in

possession has been dispossessed or has discontinued his

possession. Where a persons has been dispossessed or

discontinued of his possession of the property, he can bring an

action seeking restoration of possession of the immoveable

property within 12 years. It pre-supposes the possession of such

person over the immoveable property before he is dispossessed

or discontinued. Article 144, however, applies where any other

provision specifically providing for restoration of immoveable

property or interest therein is not available and there also though

the period of limitation is 12 years but the limitation runs from

the date when the possession of the defendants becomes adverse

to the plaintiff and commonly it is said that this provision is in

respect to the cases where the defendant's possession is said to

be adverse. Though the distinction is quite evident but in the

complex nature of the society and the disputes which arise, at

times the courts find difficulty in maintaining distinction

between the two and there appears to be some conflicting views

also as to the scope of Article 142 L.A. 1908 and its

applicability. What has been ultimately realised is that the

question would basically that of pleading.

2199. In reference to Articles 143 of Act 9 of 1871 the

2215

Privy Council in Bibi Sahodra Vs. Rai Jang Bahadur, (1881) 8

Cl. 224:8 I.A. 210 said:

“refers to a suit for possession of immovable property,

where the plaintiff, while in possession of the property, has

been dispossessed or has discontinued the possession, and

it allows twelve years from the date of the dispossession or

discontinuance. But in order to bring the case under that

head of the schedule, he must show that there has been a

dispossession or discontinuance.”

2200. The view, therefore, was that Article 143 of Act 9 of

1871 which is corresponding to Article 142 of Act 15 of 1877

and L.A. 1908 would not be attracted where pleadings distinctly

show that there was no dispossession or discontinuance of

possession of the plaintiff.

2201. In Karan Singh Vs. Bakar Ali Khan, (1882) 5 All 1

the question of application of Article 145 of Act 9 of 1871 (this

corresponds to Article 144 of the statute with which we are

concerned) arose. Sir Peacock observed that a suit can be

brought within 12 years from the time when the possession of

the defendant or of some persons through whom he claims,

became adverse to the plaintiff.

2202. In both the type of cases what we find is that

possession by itself is of much relevance and importance. The

courts took the view that by reason of his possession a person

may have an interest which can be sold or devised. One has to

prove first his possession before making complaint of

dispossession or discontinuance of possession. He need not

prove the title or the capacity in which he had the possession for

the purpose of Article 142. However, after title is proved, the

presumption of possession goes with it unless proved otherwise.

2216

2203. Privy Council in Sundar Vs. Parbati, (1889) 12 All

51 agreed with the view of this court that possession is a good

title against all the world except the person who can show a

better title. By reason of his possession such person has an

interest which can be sold or devised.

2204. In Mohima Chundar Mazoomdar (supra)

considering Article 142 of Act 15 of 1877, the Judicial

Commissioner held that onus lies upon the plaintiffs to prove

their possession prior to the time when they were dispossessed,

and at sometime within twelve years before the commencement

of the suit so as to save suit from limitation prescribed under

Article 142.

2205. Articles 142 and 144 of Act XV of 1877 came up for

consideration before the Judicial Commissioner in Nawab

Muhammad Amanulla Khan (supra). It held that Article 142

applies where the plaintiff while in possession of the

immovable property earlier had been dispossessed or has

discontinued the possession and in such a case to bring a suit for

possession, limitation would be 12 years. However, Article 144

applies only as to adverse possession where there is no other

Article which specifically provides for the same. In the

aforesaid case there was a refusal on the part of the plaintiffs

and their ancestors to make the engagement for payment of

revenue. The Government made engagement with the villagers

(defendants). It was held that this amounted to dispossession or

discontinuance of possession of the plaintiff within the meaning

of Article 142 of Act 15 of 1877 and this case would not be

governed by residuary Article 144 as to adverse possession.

2206. Explaining inter relationship of the two Articles

Punjab Chief Court in Bazkhan Vs. Sultan Malik, 43 P.R. 1901

2217

held that suit for possession of immoveable property upon

discontinuance of possession or dispossession is barred after 12

years under Article 142 of the Limitation Act although no

adverse possession is proved. Articles 144 and 142 cannot both

apply. Article 144 in terms is applicable only when no other

Article is found applicable.

2207. Privy Council in Dharani Kanta Lahiri Vs. Gabar

Ali Khan, (1913) 18 I.C. 17 said:

“it lay upon the plaintiffs to prove not only a title as

against the defendants to the possession, but to prove that

the plaintiffs had been dispossessed or had discontinued to

be in possession of the lands within the 12 years

immediately preceding the commencement of the suit.”

2208. In the above case a suit was filed for ejectment of

persons who were admittedly in possession of lands from which

they were sought to be evicted.

2209. In Secretary of State Vs. Chelikani Rama Rao,

(1916) 39 Mad. 617 Lord Shaw on page 631 of the report

observed:

“nothing is better settled than that the onus of establishing

title to property by reason of possession for a certain

requisite period lies upon the person asserting such

possession. It is too late in the day to suggest the contrary

of this proposition. If it were not correct it would be open

to the possessor for a year or a day to say, 'I am here; be

your title to the property ever so good, you cannot turn me

out until you have demonstrated that the possession of

myself and my predecessors was not long enough to fulfil

all the legal conditions.' …......It would be contrary to all

legal principles to permit the squatter to put the owner of

2218

the fundamental right to a negative proof upon the point

of possession.” (emphasis added)

2210. In Kanhaiya Lal Vs. Girwar, 1929 ALJ 1106 this

Court said:

“this article applies to suit in which the plaintiff claims

possession of the property on the ground that while in

possession he was dispossessed or his possession was

discontinued by the defendant. In other words that article is

restricted to cases in which the relief for possession sought

by the plaintiff is based on what may be styled as

possessory title.”

“possession is in itself title and good against every body

except the true owner. In short, there may be cases in

which a person, though not the true owner, has been in

peaceful possession of property and his possession is

disturbed. In such cases the person dispossessed has a

right to be restored back to possession on proving the fact

of his possession and his dispossession or discontinuance

of his possession by the defendant within a period of 12

years prior to the institution of the suit. To such cases Art.

142 applies.”

2211. It thus appear that the Court followed the principles

that the correct article to apply in cases based upon the

allegation of title and possession is Article 144 because if

plaintiff's title is proved he is entitled to succeed unless the

defendants proves that the title has been lost on account of

adverse possession on the part of defendants. But the plaintiff

though not able to substantiate his title, is in a position to prove

his possession and dispossession by defendants within 12 years,

if that be the case, Article 142 will apply and the burden will lie

2219

on the plaintiff. This was in fact misunderstood in the sense that

a suit of owner who also had actual possession, if dispossessed

or discontinued possession was not treated to be covered by

Article 142. This is evident in Kallan Vs. Mohammad

Nabikhan, 1933 ALJ 105. Fortunately this mistake was soon

realised and the view otherwise was overruled by a Full Bench

in Bindyachal Chand Vs. Ram Gharib (supra) where it was

held that Article 142 is not restricted to suits based on

possessory title only as distinguished from suits in which

plaintiff proved his proprietary title as well. This view of the

Full Bench was followed by a Full Bench of Lahore High Court

in Behari Lal Vs. Narain Das, 1935 Lah. 475.

2212. In Shyam Sunder Prasad (supra) in reference to

Article 142 and 144 of L.A. 1908 the Apex Court said:

“Under the old Limitation Act, all suits for

possession whether based on title or on the ground of

previous possessions were governed by Article 142 wherein

the plaintiff while in possession was dispossessed or

discontinued in possession. Where the case was not one of

dispossession of the plaintiff or discontinuance of

possession by him, Article 142 did not apply. Suits based

on title alone and not on possession or discontinuance of

possession were governed by Article 144 unless they were

specifically provided for by some other articles. Therefore,

for application of Article 142, the suit is not only on the

basis of title but also for possession.”

2213. Thus, the judicial consensus now binding on this

Court is to the effect that Article 142 is one of the specific

provisions governing suits for possession of immoveable

property and contemplates a suit for possession when the

2220

plaintiff, while in possession has been dispossessed or has

discontinued possession [See also Abbas Dhali Masabdi

Karikar, (1914) 24 I.C. 216 (Cal.)].

2214. Article 144 in the matter of an occasion for

possession of immoveable property or an interest therein is a

residuary Article hence the allegations made in the plaint if

brings the suit within Article 142, there is no justification or

occasion to take the matter out of that Article and then to apply

Article 144. It is only when Article 142 is not applicable and no

other article apply, based on the pleadings, then if attracted,

Article 144 may be applied. Article 142 is neither subordinate

nor subject to Article 144 but will have application on its own

and independent. Article 144 thus is a kind of residuary article

and will have application when no other article has application

to the matter. In Bindyachal Chand (supra) Justice Mukharjee

observed that if on the allegations made in the plaint suit falls

within Article 142 there is no justification to take it out of

Article 142 and attempt to bring Article 144 into picture.

2215. We may notice at this stage that the view taken by

the Courts that Article 142 would apply to a suit by the owner of

the property as well as a person suing on the basis of possessery

titles and thereby seems to favour even a trespasser, as observed

in Bindyachal Chand (supra) and some other Courts that its

applicability to a suit is based on possessary title constitute one

of the relevant aspect resulted in possibility of helping

miscreants. This view, besides other, caused in a specific and

clear provision in the new statute i.e. L.A. 1963 where words

“or has discontinued the possession” were omitted in column 3

and the words “based on previous possession and not on title”

were inserted in column 1 in Article 64 thereof.

2221

2216. In C. Natarajan Vs. Ashim Bai (supra), the Apex

Court noticed the distinction between Article 142 and 144 of LA

1908 and Article 64 and 65 of LA 1963 in para 15 of the

judgment as under:

“15. The law of limitation relating to the suit for

possession has undergone a drastic change. In terms of

Articles 142 and 144 of the Limitation Act, 1908, it was

obligatory on the part of the plaintiff to aver and plead that

he not only has title over the property but also has been in

possession of the same for a period of more than 12 years.

However, if the plaintiff has filed the suit claiming title

over the suit property in terms of Articles 64 and 65 of the

Limitation Act, 1963, burden would be on the defendant to

prove that he has acquired title by adverse possession.”

What is Dispossession

2217. Article 142 contemplates earlier possession before

dispossession or discontinuance thereof. This bring us to

understand the term 'Possession'. It has a variety of meanings. It

is a juristic concept distinct from title and can be independent of

it. It is both physical and legal concept. The concept of

possession implies “corpus possession” coupled with “animus

possidendi”. Actual user without animus possidendi is not a

possession in law. In fact, possession is a polymorphous term

having different meanings in different context. It has different

shades of meaning and very elastic in its connotation. We intend

to discuss with the term “possession” in much detail while

dealing with the issues “pertaining to possession/adverse

possession” and hence do not intend to elaborate hereat. For the

purpose of the plea of limitation, we shall confine ourselves to

the pleadings and the evidences available to find out its

2222

consequence on the case whether the suit in question is saved

from limitation or not.

2218. The pivotal point to attract Article 142 and to run

limitation is the date of "dispossession" or "discontinuation of

possession". The period of limitation thus would commence, in

a case governed by Article 142, from the date the plaintiff is

“dispossessed” or “discontinued”. The two terms ex facie do not

and cannot have the same meaning.

2219. The dictionary meaning of the term “dispossession”

is:

(A) In “Mitra's Legal & Commercial Dictionary” 5th Edition

(1990) by A.N. Saha, published by Eastern Law House Prv.

Ltd., at pages 232-233:

“Dispossession. The term 'dispossession' applies when a

person comes in and drives out others from possession. It

imports ouster; a driving out of possession against the will

of the person in actual possession. This driving out cannot

be said to have occurred when according to the case of the

plaintiff the transfer of possession was voluntary, that is to

say, not against the will of the person in possession but in

accordance with his wishes and active consent. The term

'discontinuance' implies a voluntary act and abandonment

of possession followed by the actual possession of another.

Qadir Bux v. Ramchand AIR 1970 All 289.

Unless the possession of a person prior to his alleged

dispossession is proved, he cannot be said to have been

dispossessed. Rudra Pratap v Jagdish AIR 1956 Pat 116.”

(B) In “Black's Law Dictionary” Seventh Edition (1999),

published by West, St. Paul, Minn., 1999, at page 485:

“dispossession Deprivation of, or eviction from,

2223

possession of property; ouster.”

(C) In “The Judicial Dictionary of Words and Phrases

Judicially Interpreted, to which has been added Statutory

Definitions” by F. Stroud Second Edition Vol. 1 (1903), at page

485:

“DISPOSSESSION.-”Dispossession, or Discontinuance

of Possession,” s.3, Real Property Limitation Act, 1833,

means the ABANDONMENT of possession by one entitled

to it (Rimington v. Cannon, 22 L.J. C.P. 153; 12 C. B. 18),

followed by actual possession by another (Smith v. Lloyd,

23 L.J. Ex. 194; 9 Ex. 562: McDonnell v. MeKinty, 10

Ir.L.R. 514); ignorance on the part of the rightful owner

that such adverse possession has been taken making no

difference (Rains v. Buxton, 49 L.J. Ch. 473; 14 Ch. D.

537; 28 W. R. 954).

Acts of user which do not interfere, and are

consistent, with the purpose to which the owner intends to

devote the land, do not amount to Discontinuance of

Possession by him (Leigh v. Jack, 5 Ex. D.264; 49 L. J. Ex.

220); Dispossession “involves an animus possidendi with

the intention of excluding the owner as well as other

people” (per Lindley, M.R., Littledale vs. Liverpool

College, 69 L.J. Ch. 89, cited DISCONTINUANCE).

SMALL ACTS by the rightful owner will disprove

“Dispossession or Discontinuance,”- e.g. small repairs

(Leigh v. Jack, sup), or, as regards a boundary wall, an

inscription claiming it (Phillipson vs. Gibbon, 40 L.J. Ch.

406; 6 Ch. 428).

Vh, Watson, Eq. 574, 575; and for a full examination

of the cases on “Dispossession” and “Discontinuance,” V.

2224

35 S. J. 715, 742, 750.”

(D) In “Corpus Juris Secundum” A Complete Restatement

of the Entire American Law as developed by All Reported

Cases (1959), Vol. 27, published by Brooklyn, N.Y. The

American Law Book Co., at pages 600-601:

“DISPOSSESSION. The act of putting out of possession,

the ejectment or exclusion of a person from the realty, if

not to his injury, then certainly against his interest and

without his consent, ouster.

The term has been held not to imply necessarily a

wrongful act; and, although it has been defined as a wrong

that carries with it the amotion of possession, an act

whereby the wrongdoer gets the actual possession of the

land or hereditament, including abatement, intrusion,

disseisin, discontinuance, deforcement, it has been said

that it may be by right or by wrong, that it is necessary to

look at the intention in order to determine the character of

the act, and that, in this respect, the word is to be

distinguished from “disseisin.”

(E) In “Words and Phrases” Legally Defined, Vol. 2 (1969),

published by Butterworth & Co. (Publishers) Ltd., at pages 89-

90:

“DISPOSSESSION [A partnership was dissolved, and the

continuing partner, Hudson, agreed, in consideration of an

assignment to him of the partnership property, to pay an

annuity to the retiring partner. In order to carry into effect

this agreement an indenture was entered into and executed

between the parties; and Hudson bound himself to trustees,

in the sum of £ 2,000, by a bond of even date conditioned to

be void on payment of the annuity “or in case he should at

2225

any time after the expiration of the then existing lease, be

dispossessed of and be compelled and obliged to leave and

quit the premises without any collusion, contrivance,

consent, act, or default” on his part.] “It seems that the

species of dispossession in contemplation was a

compulsory eviction; and they meant to provide that, if

Hudson should be evicted, not through any fault of his own,

he should no longer be burthened with payment of the

annuity …. The expulsion intended to be provided for, was

such an expulsion as would leave Hudson no benefit from

the premises.” Heyland v. De Mendez (1817), 3 Mer. 184,

per Grant, M.R., at p. 189.”

(F) In P Ramanatha Aiyar's “The Law Lexicon” with Legal

Maxims, Latin Terms and Words & Phrases, Second Edition

1997), published by Wadhwa and Company Law Publishers, at

page 573:

“Dispossession. Where the heirs of the deceased could not

realise rent owing to successful intervention of another

person, it must be taken that they were dispossessed.

“Dispossession” implies ouster, and the essence of ouster

lies in that the person ousting is in actual possession.

Dispossession implies some active element in the

mind of a person in ousting or dislodging or depriving a

person against his will or counsel and there must be some

sort of action on his part.

The word “dispossession” in the third column of the

article is dispossession by the landlord or by an authorised

agent of the landlord acting within the scope of his

authority.

Dispossession obviously presupposes previous

2226

possession of the person dispossessed. If a person was

never in possession, he will be said to be out of

possession, but he cannot be said to have ever been

dispossessed.”

2220. Similarly the meaning of term “discontinuance” in

various dictionaries is as under:

(A) In “The New Lexicon Webster's Dictionary of the

English Language” (1987), published by Lexicon Publications,

Inc. at page 270:

“Dis-con-tin-u-ance-a discontinuing (law) the

discontinuing of an action because the plaintiff has not

observed the formalities needed to keep it pending”

(B) In “Mitra's Legal & Commercial Dictionary” 5th Edition

(1990) by A.N. Saha, published by Eastern Law House Prv.

Ltd., at pages 229:

“Discontinuance of Possession. Discontinuance of

possession connotes adandonment of possession by the

owner followed by the taking of possession by another.

Hashim v. Hamidi AIR 1942 Cal 180: 46 CWN 561.

Discontinuance implies a voluntary act and

abandonment of possession followed by the actual

possession of another. Quadir Bux v. Ramchand AIR 1970

All 289.”

(C) In “Black's Law Dictionary” Seventh Edition (1999),

published by West, St. Paul, Minn., 1999, at page 477:

“discontinuance 1. The termination of a lawsuit by the

plaintiff; a voluntary dismissal or nonsuit. See Dismissal;

Nonsuit. 2. the termination of an estate-tail by a tenant in

tail who conveys a larger estate in the land than is legally

allowed.”

2227

(D) In “The Judicial Dictionary of Words and Phrases

Judicially Interpreted, to which has been added Statutory

Definitions” by F. Stroud Second Edition Vol. 1 (1903), at page

540-541:

“DISCONTINUANCE.- “ 'Discontinuance' is an ancient

word in the law” (Litt. s. 592). “A discontinuance of

estates in lands or tenements is properly (in legall

understanding) an alienation made or suffered by tenant in

taile, or by any that is seized in auter droit, whereby the

issue in taile, or the heire or successor, or those in

reversion or remainder, are driven to their action, and

cannot enter” (Co. Litt. 325 a). Vf, Termes de la Ley: 3 Bl.

Com. 171.

“Discontinuance of POSSESSION,” s. 3, 3 & 4 W. 4,

c. 27; V. Leigh v. Jack, 5 Ex. D. 264; 49 L. J. Ex. 220:

Littledale v. Liverpool College, 1900, 1 Ch. 19; 69 L. J. Ch.

87; 81 L.T. 564; 48 W.R. 177.”

(E) In “Corpus Juris Secundum” A Complete Restatement

of the Entire American Law as developed by All Reported

Cases (1956), Vol. 26A, published by Brooklyn, N.Y. The

American Law Book Co., at pages 971-972:

“DISCONTINUANCE. The word “discontinuance” is

defined generally as meaning the act of discontinuing;

cessation; intermission; interruption of continuance.

As defined in Dismissal and Nonsuit; 2, the word

“discontinuance” means an interruption in the

proceedings of a case caused by the failure of the plaintiff

to continue the suit regularly as he should, and it is either

voluntary or involuntary, and is similar to a dismissal,

nonsuit, or nolle prosequi, but differs from a retraxit.

2228

In a particular connection, it has been held that the

term connotes a voluntary, affirmative, completed act, and

that it cannot mean a temporary nonoccupancy of a

building or a temporary cessation of a business.

The term may be employed as synonymous with

“abandonment.”

(F). In “Words and Phrases” Permanent Edition, Vol. 12A

(1954), published by St. Paul, Minn. West Publishing Co., at

pages 276-277:

“DISCONTINUANCE-A “discontinuance” of case is a

gap or chasm in proceeding after suit is pending.

The term “discontinuance” means voluntary

withdrawal of a suit by a plaintiff.

There exists no essential difference between a

“discontinuance” and a “voluntary nonsuit.”

A criminal suit may be discontinued,

“discontinuance” being a gap or chasm in prosecution

after suit is pending.

The word “discontinuance” is synonymous with

“abandonment,” and connotes a voluntary, affirmative,

completed act.

The word “discontinuance” as it is used in the

ordinance is synonymous with “abandonment”. It connotes

a voluntary, affirmative, completed act.

Word “discontinuance” as employed in deed of land

from city to county providing in effect that property was

deeded to county to be used for park purposes and that city

reserved all right of reversion in event of discontinuance of

property for park purposes was equivalent to

abandonment.

2229

Narrowing of street held not “discontinuance”

within statute requiring written petition as basis for action

by village board.

“Discontinuance,” generally speaking, is failure to

continue case regularly from day to day and from term to

term from commencement of suit until final judgement.

The word “discontinue” as used in ordinance,

providing that, if nonconforming use of premises was

discontinued future use should be in conformity with

ordinance, means something more than mere suspension,

and did not mean temporary nonoccupancy of building or

temporary cessation of business, but word

“discontinuance” as used was synonymous with

abandonment, and connoted voluntary affirmative

completed act. Zoning ordinance did not destroy owner's

right to continue nonconforming use of premises merely

because tenant became insolvent.”

(G) In P Ramanatha Aiyar's “The Law Lexicon” with Legal

Maxims, Latin Terms and Words & Phrases, Second Edition

1997), published by Wadhwa and Company Law Publishers, at

page 562:

“Discontinuance. Default; a discontinuance in practice is

the interruption in proceedings occasioned by the failure of

plaintiff to continue the suit from time to time as he ought,

or failure to follow up his case: A break or chasm in a suit

arising from the failures of the plaintiff to carry the

proceedings forward in due course of law.

Discontinuance is either voluntary, as where plaintiff

withdraws his suit or involuntary, as where in consequence

of some technical omission, mispleading, or the like, the

2230

suit is regarded as out of courts, A discontinuance means

no more than a declaration of plaintiff's willingness to stop

the pending action; it is neither as adjudication of his

cause by the proper tribunal nor an acknowledgement by

him that his claim is not will founded.”

(H) In “Jowitt's Dictionary of English Law” Vol. 1 Second

Edition-1977, Second Impression-1990, published by London

Sweet & Maxwell Limited, at pages 621-622:

“Discontinuance, an interruption or breaking off. This

happened when he who had an estate tail granted a larger

estate of the land than by law he was entitled to do; in

which case the estate was good so far as his power

extended to make it, but no further (Finch L. 190;1 Co.

Rep. 44).

Formerly, in the law of real property, discontinuance

was where a man wrongfully alienated certain lands or

tenements and dies, whereby the person entitled to them

was deprived of his right of entry and was compelled to

bring an action to recover them,. The term was specially

applied to alienations by husbands seised jure uxoris, by

exxlesiastics seised jure ecclesiae, and by tenants in tail:

thus, if a tenant in tail alienated the land and died leaving

issue, the issue could not enter on the land but was

compelled to bring and action (Litt. 470, 592, 614; Co. Litt.

325A; Termes de la Ley; 3 Bl. Comm. 171).

The principal action appropriate to discontinuance

were formedon, cui in vita, and cui ante divortium. The

effect of discontinuance was taken away by the Real

Property Limitation Act, 1833, s. 39. See Miscontinuaunce;

Recontinuance; Withdrawal.

2231

In the procedure of the High Court discontinuance is

where the plaintiff in an action voluntarily puts an end to it,

either by giving notice in writing to the defendant not later

than fourteen days after service of the defence (R.S.C. Ord.

21, r. 2(1)) or later with leave of the court (r.3). The effect

of discontinuance is that the plaintiff has to pay the

defendant's costs (R.S.C. Ord. 62, r. 10(1)) and any

subsequent action may be stayed until these costs are paid

(R.S.C. Ord. 21, r. 5). A defendant may withdraw his

defence at any time and may discontinue a counterclaim by

notice not later than fourteen days after service of a

defence to the counterclaim (r. 2(2)). A counterclaim may

be discontinued later by leave of the court (r.3). He must

pay the costs of the plaintiff (R.S.C. Ord. 62, r. 5). If all the

parties consent the action may be withdrawn without leave

of the court (r.2(4)).

2221. The term “dispossession” and “discontinuance of

possession” in Article 142, Act IX of 1908 came to be

considered before the Calcutta High Court in Brojendra

Kishore Roy Chowdhury (supra) and the Court held:

“Dispossession implies the coming in of a person and the

driving out of another from possession. Discontinuance

implies the going out of the person in possession and his

being followed into possession by another.”

2222. In Basant Kumar Roy (supra), the Court explained

the term 'dispossession' in Article 142 of Limitation act of 1877:

“The Limitation Act, of 1877, does not define the term

“dispossession”, but its meaning is well settled. A man may

cease to use his land because he cannot use it, since it is

under water. He does not thereby discontinue his

2232

possession : constructively it continues until he is

dispossessed; and, upon the cessation of the dispossession

before the lapse of the statutory period, constructively it

revives. “There can be no discontinuance by absence of

use and enjoyment, when the land, is not capable of use

and enjoyment”, .... It seems to follow that there can be no

continuance of adverse possession, when the land is not

capable of use and enjoyment, so long as such adverse

possession must rest on de facto use and occupation.”

2223. The distinction between “dispossession” and

“discontinuance” has been noticed in Gangu Bai Vs. Soni 1942

Nagpur Law Journal 99 observing that “dispossession” is not

voluntary, “discontinuance” is. In dispossession, there is an

element of force and adverseness while in the case of

discontinuance, the person occupying may be an innocent

person. For discontinuance of possession, the person in

possession goes out and followed into possession by other

person.

2224. In Agency Company Vs. Short, 1888 (13) AC 793

the Privy Council observed that there is discontinuance of

adverse possession when possession has been abandoned. The

reason for the said observation find mention on page 798 that

there is no one against whom rightful owner can bring his

action. The adverse possession cannot commence without actual

possession and this would furnish cause of action.

2225. Dispossession is a question of fact. The term refers

to averments in the plaint exclusively and cannot be construed

as referring to averments in the plaint in the first instance and at

a later stage to the finding on the evidence. The indicias of

discontinuance are also similar to some extent. It implies going

2233

out of the person in possession and is being followed into

possession by another. In Abdul Latif Vs. Nawab Khwaja

Habibullah 1969 Calcutta Law Journal 28, the Court observed

that discontinuance connotes three elements i.e. actual

withdrawal, with an intention to abandon, and another stepping

in after the withdrawal. Same is the view taken by this Court

and Kerala High Court in Qadir Bux Vs. Ram Chandra AIR

1970 Alld. 289 (FB) and Pappy Amma Vs. Prabhakaran Nair

AIR 1972 Kerala 1 (FB).

2226. In order to wriggle out of the limitation prescribed

under Article 142 of the Limitation Act, it has to be shown by

the plaintiff that he was in possession of the disputed land,

within 12 years of the suit and has been dispossessed, as

observed by the Apex Court in Sukhdev Singh Vs. Maharaja

Bahadur of Gidhaur (supra).

2227. In Wahid Ali & another Vs. Mahboob Ali Khan

AIR 1935 Oudh 425, referring to Article 142 of Limitation Act,

1908 the Court held where the plaintiff or the Muslim

community whom they represent were dispossessed from the

land in question belonging to the graveyard by the erection of a

house thereon and the suit is filed after 12 years therefrom, it

would be barred by Article 142 of the Limitation Act.

2228. In R.H.Bhutani Vs. Miss Mani J. Desai AIR 1968

SC 1444, the Court said that dispossession means to be out of

possession, removed from the premises, ousted, ejected or

excluded. It applies when a person comes in and drives out

others in possession.

2229. In Shivagonda Subraigonda Patil Vs. Rudragonda

Bhimagonda Patil 1969 (3) SCC 211, the Court held that

dispossession for the purpose of this Article must be by the

2234

defendant and that must be the basis of the suit. If there is no

dispossession by the defendant, this Article would have no

application. The dispossession, therefore, implies taking

possession without consent of the person in possession and is a

wrong to the person in possession. It must result in termination

of possession of the person in possession earlier.

2230. Application of Article 142 and 144 of L.A. 1908

was considered in Jamal Uddin and (supra) and in para 29 the

Court said:

“29. The next point that was urged by the counsel

for the appellants was that the courts below committed a

legal error in applying Art. 144 of the Limitation Act, 1908,

to the suit and placing the burden on the defendants to

prove their adverse possession for more than twelve years,

while the suit on the allegations contained in the plaint

clearly fell within the ambit of Art. 142 and the burden was

on the plaintiffs to prove their possession within twelve

years. This contention also is quite correct. It was clearly

alleged by the plaintiffs that they had been dispossessed by

the contesting defendants before the filing of the suit. As

such, the suit would be governed by Article 142 and the

residuary Article 144 will have no application. The courts

below have unnecessarily imported into their discussion

the requirements of adverse possession and wrongly placed

the burden on the defendant to prove those requirements.

Now the trial Court has approached the evidence produced

by the parties would be evident from the following

observation contained in its judgment.

“The onus of proving adverse possession over the

disputed land lies heavily upon the defendants and their

2235

possession has to be proved beyond doubt to be notorious,

exclusive, openly hostile and to the knowledge of the true

owner as laid down in AIR 1938 Mad 454.”

After a consideration of the documentary and oral evidence

produced by the defendants to prove their possession the

trial Court has opined that the document on record do not

prove the title and possession of the defendants to the hilt

in respect of the disputed land. So far as the plaintiffs'

evidence is concerned it was disposed of by the trial Court

with the following observations:

“. . . . . .No doubt, the oral evidence of the plaintiffs

about the use of the land for saying the prayers of 'Janaze

Ki namaz' and about the letting out of the land in suit for

purposes of 'D or Sootana' is equally shaky and

inconsistent. But as already pointed out above the plaintiffs

have succeeded in proving their title over the disputed land

and as such possession would go with the ownership of the

land. The defendants cannot be allowed to take advantage

of the plaintiffs foulty evidence and it was for them to prove

beyond any shadow of doubt that they were actually in

possession over the disputed land as owners and that they

exercised this right openly hostile to the plaintiffs with the

latter's knowledge. Judged in this context, the evidence of

the defendant falls short of this requirement.”

2231. The learned counsel for the Pro-Mosque parties as

well as Nirmohi Akhara sought to argue that since the property

in dispute was attached by the Magistrate under Section 145

Cr.P.C. and this attachment continued, the question of

dispossession by an individual private party as such may not

arise or of no consequence. The Magistrate was not handing

2236

over possession to the rightful owner, it gave a (fresh) cause of

action, which was continuing and hence Articles 142 or 144 or

even 120 need not be gone into in these cases.

2232. This require us to have a bird eye view not only of

Section 145 Cr.P.C., its connotation, implication, scope and

consequences in the matter. What is evident from record is that

the property in dispute, as specified in Suit-4, was not in its

entirety placed under attachment.

2233. The case of the plaintiffs (Suit-4) is that in the night

of 22nd/23rd December, 1949 some Hindu people surreptitiously

placed the idols inside the disputed building under the central

dome and thereby interferred and obstructed the right of worship

of the Muslim parties. It is admitted by almost all the witnesses

of the plaintiffs (Suit-4) that on and after 23rd December 1949,

no Muslim has entered the disputed premises and no Namaz has

been offered therein. In fact, this is what has been the case set

out by the plaintiffs, as is evident from para 11 of the plaint,

which reads as under:

"That the Muslims have been in peaceful possession

of the aforesaid mosque and used to recite prayer in it, till

23.12.2949."

2234. The possession of the parties of the inner courtyard

thereafter was disturbed inasmuch on 29th December, 1949, the

City Magistrate passed an order under section 145 Cr.P.C.

attaching the property due to apprehension of breach of peace

and appointed Receiver giving in his possession a part of the

disputed property, i.e., the inner courtyard which, in fact, was

taken in charge by Receiver, Priya Dutt, on 5th January, 1950.

2235. Nirmohi Akhara has claimed that the possession of

the outer courtyard remained with them, as it was earlier, till

2237

1982, when in some other suit between the people of Nirmohi

Akhara, the same was also attached and placed in the hands of a

Receiver. It has also been said that infact the same Receiver was

given charge, who was already having the charge of the

premises in the inner courtyard. These facts we find have not

been disputed by any of the parties and in fact there is nothing

on record to contradict it.

2236. It would thus appropriate first to consider Section

145 Cr.P.C., 1898 as it stood in 1949-50 when the proceedings

were initiated thereunder.

2237. Section 145 Cr.P.C., 1898, as it stood then, i.e., prior

to its amendment by Amendment Act, 1955, was as under:

"145. (1) Whenever a District Magistrate, Sub-Divisional

Magistrate or Magistrate of the first class is satisfied from

a police report or other information that a dispute likely to

cause a breach of the peace exists concerning any land or

water or the boundaries thereof, within the local limits of

his jurisdiction, he shall make an order in writing, stating

the grounds of his being so satisfied, and requiring the

parties concerned in such dispute to attend his Court in

person or by pleader, within a time to be fixed by such

Magistrate, and to put in written statements of their

respective claims as respects the fact of actual possession

of the subject of dispute.

(2) For the purposes of this section the expression

"land or water" includes building, markets, fisheries, crops

or other produce of land, and the rents or profits of any

such property.

(3) A copy of the order shall be served in manner

provided by this Code for the service of a summons upon

2238

such person or persons as the Magistrate may direct, and

at least one copy shall be published by being affixed to

some conspicuous place at or near the subject of dispute.

(4) The Magistrate shall then, without reference to

the merits or the claims of any of such parties to a right to

possess the subject of dispute, peruse the statements so put

in, hear the parties, receive all such evidence as may be

produced by them respectively, consider the effect of such

evidence, take such further evidence (if any) as he thinks

necessary, and, if possible, decide whether any and which

of the parties was at the date of the order before mentioned

in such possession of the said subject:

Provided that, if it appears to the Magistrate that any

party has within two months next before the date of such

order been forcibly and wrongfully dispossessed, he may

treat the party so dispossessed as if he had been in

possession at such date:

Provided also, that if the Magistrate considers the

case one of emergency, he may at any time attach the

subject of dispute, pending his decision under this section.

(5) Nothing in this section shall preclude any party

so required to attend, or any other person interested, from

showing that no such dispute as aforesaid exists or has

existed; and in such case the Magistrate shall cancel his

said order, and all further proceedings thereon shall be

stayed, but subject to such cancellation, the order of the

Magistrate under sub-section (1) shall be final.

(6) If the Magistrate decides that one of the parties

was or should under the second proviso to sub-section (4)

be treated as being in such possession of the said subject,

2239

he shall issue an order declaring such party to be entitled

to possession thereof until evicted therefrom in due course

of law, and forbidding all disturbance of such possession

until such eviction and when he proceeds under the second

proviso to sub-section (4), may restore to possession the

party forcibly and wrongfully dispossessed.

(7) When any party to any such proceeding dies, the

Magistrate may cause the legal representative of the

deceased party to be made a party to the proceeding and

shall thereupon continue the inquiry, and if any question

arises as to who the legal representative of a deceased

party for the purpose of such proceeding is, all persons

claiming to be representatives of the deceased party shall

be made parties thereto.

(8) If the Magistrate is of opinion that any crop or

other produce of the property, the subject of dispute in a

proceeding under this section pending before him, is

subject to speedy and natural decay, he may make an order

for the proper custody or sale of such property, and, upon

the completion of the inquiry, shall make such order for the

disposal of such property, or the sale-proceeds thereof, as

he thinks fit.

(9) The Magistrate may, if he thinks fit, at any stage

of the proceedings under this section, on the application of

either party, issue a summons to any witness directing him

to attend or to produce any document or thing.

(10) Nothing in this section shall be deemed to be in

derogation of the powers of the Magistrate to proceed

under section 107."

2238. The nature of the proceedings under Section 145

2240

Cr.P.C. are not judicial. The Magistrate is not supposed to deal

with the matter as if it is a Civil Suit. A party to a proceeding

under Section 145 is not in a position of a plaintiff in a Civil

Suit who has set the Court in motion and has a right to require a

decision upon the questions raised by him.

2239. Privy Council in Dinomoni Chowdhrani & Brojo

Mohini Chowdhrani 29 IA 24 (PC) observed that the

proceedings under Section 145 do not constitute a trial and are

not in the nature of a trial. They are in the nature police

proceedings in order to prevent the commission of offence. The

nature of the proceedings under Section 145 Cr.P.C. has been

described in different terms like quasi-civil (Bande Ali Vs.

Rejaullah 25 Cr.L.J. 303), quasi-executive (Madho Kunbi Vs.

Tilak Singh AIR 1934 Nagpur 194), quasi-judicial

(Muhammad Araf Vs. Satramdas Sakhimal & others AIR

1936 Sind 143), quasi-criminal (K.S. Prahladsinhji Vs.

Chunilal B. Desai AIR 1950 Saurashtra 7).

2240. The object of section is merely to prevent breach of

peace by maintaining one or the other of the parties in

possession and where it is not possible to place any of the

parties in possession, to appoint Receiver and to take the

property in the custody of the Court, i.e., custodia legis. These

proceedings are not to protect or maintain any body in

possession (Musammat Phutania Vs. Emperor 25 Cr.L.J.

1109).

2241. In Doulat Koer Vs. Rameshwari Koeri alias Dulin

Saheba (1899) ILR 26 Cal. 635, the Court said that this Section

is to enable a Magistrate to intervene and pass a temporary order

in respect to the possession of the property in dispute having

effect until the actual right of one of the parties is determined by

2241

any competent Court in more lengthy proceedings. In order to

attract proceedings under Section 145, Lahore High Court in

Agha Turab Ali Khan Vs. Shromani Gurdwara Parbandhak

Committee AIR 1933 Lahore 145 has said that the power or

competency of the Magistrate to interfere depends on the very

fact that the possession of the land is in dispute. The dispute

means actual disagreement, struggle, scramble or quarrel for

possession of the land existent between the disputants at the

time of proceedings with reference to the merits of their

respective claim to possess the land. It is nobody's case that such

proceedings were not initiated or that the same were initiated

wrongly or that the procedure prescribed thereof under the

statute was not followed.

2242. The order dated 29.12.1949 is a preliminary order

referable to Section 145 Sub-section (1) read with Sub-section

(4) second proviso. It is an admitted position by all the parties

that the Receiver appointed by Magistrate took the possession of

the property and such possession continued till it was replaced

by the statutory Receiver under the Act of 1993. It is pointed out

that when a Receiver is appointed by the Court, his possession is

the possession of the Court. He is Officer through whom the

Court exercises its power of management. Such an officer

cannot be correctly described as party interested in the dispute

likely to cause a breach of peace. No final order in the case in

hand could be passed by the Magistrate. It appears that on

16.1.1950 an injection order was passed by the Civil Judge in

Suit-1. The aforesaid order was modified on 19.1.1950 and the

modified order was confirmed by the Civil Judge as well as this

Court on 26.04.1955.

2243. Despite filing of the civil suit and injunction order

2242

passed therein, the City Magistrate could not drop the

proceedings and passed an order for deferring the said

proceedings. Sri Jilani & Siddiqui, learned counsels for the

plaintiffs have castigated the said approach of the Magistrate

stating that he ought to have passed final order in one or the

other manner or should have dropped the proceedings but by

keeping the matter pending, parties were left in lurch, and

therefore, for such a situation created by City Magistrate, the

plaintiffs' suit cannot be held barred by limitation and it should

be deemed that every order passed by the City Magistrate

resulted in a fresh cause of action for filing civil suit by the

plaintiffs.

2244. We however, find it difficult to agree. From perusal

of injunction order passed by the Civil Court, we find that on

16th January, 1950 a simple order, in terms of the prayer made in

the interim injunction application, was passed directing the

parties to maintain status quo. Thereafter on 19th January, 1950,

the order was modified but the Civil Court did not appoint a

Receiver of its own and also did not direct the City Magistrate

to get the possession transferred to any other person or another

Receiver of the Court instead of the Receiver appointed by the

Magistrate. On the contrary, in Suit-1, the City Magistrate was

also impleaded as one of the defendant and the Civil Court

passed an order directing the defendants to maintain status quo.

It also clarified that the Sewa, Puja as was going on, shall

continue. Quite visible, the Magistrate could not have ignored

this order by dropping the proceedings as that would have

resulted in discharge of Receiver and release of the property

attached and placed in his charge. In other words, it could have

construed by the Civil Judge as an order disobeying the order of

2243

statue quo. Had the Civil Judge passed an order appointing a

Court's Receiver and directing the Magistrate to hand over

possession of the property to him, the position might have been

different. In these circumstances, if the Magistrate did not drop

the proceedings but deferred it, we find no fault on his part.

Moreover, when the earlier order of the Magistrate, attaching

the property and placing it in the charge of Receiver, could not

have resulted in giving a cause of action to the plaintiffs to file

suit, we failed to understand as to how the subsequent order,

which merely deferred the pending proceedings, would lend any

help. The order of attachment passed by the Magistrate itself

does not given a cause of action and on the contrary it only

make the things known to the party that there appears to be

some dispute about the title and/or possession of the property

concerned and also there is apprehension of disturbance of

public peace and order. The cause of action virtually is known

to the party that there exist some dispute and not the order of the

Magistrate whereby he attached the property in question and

placed it in the charge of the Receiver.

2245. We find that in the context of Section 145 Cr.P.C.,

1973, a three-Judge Bench of the Apex Court in Amresh Tiwari

Vs. Lalta Prasad Dubey & another 2000 (4) SCC 440

following an earlier decision in Ram Sumer Puri Mahant Vs.

State of U.P. and others 1985 (1) SCC 427 said:

"12. The question then is whether there is any

infirmity in the order of the S.D.M. dicontinuing the

proceedings under Section 145 Criminal Procedure Code.

The law on this subject-matter has been settled by the

decision of this Court in the case of Ram Sumer Puri

Mahant v. State of U.P., reported in, (1985) 1 SCC 427 :

2244

(AIR 1985 SC 472 : 1985 Cri LJ 752). In this case it has

been held as follows:

"When a civil litigation is pending for the property

wherein the question of possession is involved and has

been adjudicated, we see hardly any justification for

initiating a parallel criminal proceeding under Section

145 of the Code. There is no scope to doubt or dispute

the position that the decree of the civil court is binding

on the criminal Court in a matter like the one before us.

Counsel for respondents 2-5 was not in a position to

challenge the proposition that parallel proceedings

should not be permitted to continue and in the event of a

decree of the civil Court, the Criminal Court should not

be allowed to invoke its jurisdiction particularly when

possession is being examined by the civil court and

parties are in a position to approach the Civil Court for

interim orders such as injunction or appointment of

receiver for adequate protection of the property during

pendency of the dispute. Multiplicity of litigation is not

in the interest of the parties nor should public time be

allowed to be wasted over meaningless litigation. We

are, therefore, satisfied that parallel proceedings should

not continue."

13. We are unable to accept the submission that

the principles laid down in Ram Sumers case (AIR 1985

SC 472 : 1985 Cri LJ 752) would only apply if the civil

Court has already adjudicated on the dispute regarding

the property and given a finding. In our view Ram

Sumers case is laying down that multiplicity of litigation

should be avoided as it is not in the interest of the parties

2245

and public time would be wasted over meaningless

litigation. On this principle it has been held that when

possession is being examined by the civil Court and parties

are in a position to approach the civil Court for adequate

protection of the property during the pendency of the

dispute, the parallel proceedings i.e. Section 145

proceedings should not continue.

14. Reliance has been placed on the case of

Jhummamal alias Devandas v. State of Madhya Pradesh

reported in, (1988) 4 SCC 452 : (AIR 1988 SC 1973 : 1989

Cri LJ 82). It is submitted that this authority lays down that

merely because a civil suit is pending does not mean that

proceedings under Section 145, Criminal Procedure Code

should be set at naught. In our view this authority does not

lay down any such broad proposition. In this case the

proceedings under Section 145, Criminal Procedure Code

had resulted in a concluded order. Thereafter the party,

who had lost, filed civil proceedings. After filing the civil

proceedings he prayed that the final order passed in the

Section 145 proceedings be quashed. It is in that context

that this Court held that merely because a civil suit had

been filed did not mean that the concluded order under

Section 145 Criminal Procedure Code should be quashed.

This is entirely a different situation. In this case the civil

suit had been filed first. An Order of status quo had

already been passed by the competent civil Court.

Thereafter Section 145 proceedings were commenced. No

final order had been passed in the proceedings under

Section 145. In our view on the facts of the present case the

ratio laid down in Ram Sumers case (AIR 1985 SC 472 :

2246

1985 Cri LJ 752) (supra) fully applies. We clarify that we

are not stating that in every case where a civil suit is

filed. Section 145 proceedings woud never lie. It is only

in cases where civil suit is for possession or for declaration

of title in respect of the same property and where reliefs

regarding protection of the property concerned can be

applied for and granted by the civil Court that proceedings

under Section 145 should not be allowed to continue.

This is because the civil court is competent to decide the

question of title as well as possession between the parties

and the orders of the civil Court would be binding on the

Magistrate."

2246. In Sadhuram Bansal Vs. Pulin Behari Sarkar and

others 1984 (3) SCC 410, a three-Judge Bench of theApex

Court observed in para 62, that the pendency of the proceeding

under Section 145 Cr.P.C. and order, if any, passed thereon does

not in any way affect the title of the parties to the disputed

premises though it reflects the factum of possession. It followed

an earlier decision in Bhinka and others Vs. Charan Singh

(supra).

2247. The provision as existed in Cr.P.C. in 1989 before

its amendment in 1955 though went under some change in 1955,

but it appears that under the new Cr.P.C., 1973 Section 145 is

virtually same as was before 1955 amendment. This has been

noticed by the Apex Court in Mathura Lal Vs. Bhanwar Lal

and another 1979 (4) SCC 665 as under:

"The provisions of Sections 145 and 146 of the 1973

Code are substantially the same as the corresponding

provisions before the 1955 amendment. The only noticeable

change is that the second proviso to Section 145 (4) (as it

2247

stood before the 1955 amendment) has now been

transposed to Section 146 but without the words "pending

his decision under this Section" and with the words "at any

time after making the order under Section 145(1)" super-

added. The change, clearly, is in the interests of convenient

draftsmanship. ..."

2248. The above discussion, in our view, would show that

the proceedings under Section 145 Cr.P.C. and the orders passed

therein would not help the plaintiffs in the matter of limitation

particularly when it is virtually admitted in the plaint that they

discontinued with possession at least from 23rd December, 1949.

It is their own version and this disturbance is on account of a

title dispute of the property in question. Moreover, all the

plaintiffs do not claim themselves to be the owner of the

property in question or the legal custodian thereof. None of the

plaintiffs is claimed to be Mutwalli of the alleged waqf. It is

only a Mutwalli of a waqf who can claim possession of the

property in question according to Islamic Law. However, no

such person is before us seeking the relief of possession or to

seek a declaration in his capacity as Mutwalli. Plaintiffs No.1

Sunni Central Waqf Board is a supervisory controlling body of

the Sunni Waqfs in the State of U.P. but on its own has no

power to claim possession or custody of any waqf. At least no

such provision has been shown. The other individual plaintiffs

claimed themselves to be the worshippers i.e. the beneficiaries

of the alleged waqf. If there is any obstruction in the right of

worship of an individual, he can come to the Court for

protection of such right of worship but cannot claim possession

of such property since he is neither owner nor legal custodian of

the property. Similarly, right of worshipper is confined for the

2248

period the subject matter is in existence and vanishes as soon as

the right of the owner or that of legal custodian goes or the

subject matter disappear, as observed in the case of Masjid

Shahid Ganj (Supra).

2249. Had it been a suit for a mere injunction for protection

of right of worship, something might have been said, but no

such relief has been sought by the plaintiffs in the case in hand

and we cannot read a prayer which is neither incidental nor

otherwise connected but totally different to the real prayer made

in the suit. The effect of the property being attached by the

Magistrate shall neither result in extension of limitation for the

plaintiffs nor in exclusion of certain period for the purpose of

limitation to some extent or to the extent of the period the

property remain under attachment or in any other manner.

2250. We may consider whether the effect of the property

being attached by the Magistrate will give any benefit to the

plaintiffs either for extension of limitation or for excluding some

period for the purpose of limitation to some extent or to the

extent the property remained under attachment or in any other

manner can help.

2251. Where one person claims to be in possession to the

exclusion of others and alleges that some other person seeks

unlawfully or by force to interfere with his possession and if it is

likely to lead to a breach of peace, it will be justifiable and

necessary for a Magistrate to take action under Section 145(1)

Cr.P.C., (in the present case Cr.P.C. of 1898). Such an order

passed is only a police order and in no sense is a final one. The

possession contemplated under Section 145 is actual physical

possession on the subject matter. The possession, so taken over

by Receiver, appointed by a criminal Court after attachment,

2249

merely passes the property into custodia legis and is not

dispossession within the meaning of Article 142 of L.A. 1908,

as observed in Pappy Amma (supra). The legal possession of

the land attached, for the purpose of limitation, will be

constructively with the person who was entitled to the property

at the date of attachment. Magistrate cannot be regarded as

having dispossessed either party and he cannot legally be made

a party to the suit of either of the claimants.

2252. It is submitted that since no final order has been

passed by the Magistrate so far, there is no question of

limitation applying in this case and, therefore, it cannot be

pleaded that the suit is barred by limitation under any of the

provisions of L.A. 1908. Article 142 and 144 would not apply.

Let us examine the legal position when the property is attached.

2253. The possession of the part of the property (the inner

courtyard of the disputed premises) was placed with a Receiver

by an order of City Magistrate passed under section 145 Cr.P.C..

At the time when the suit was filed the possession was not with

any adversary but in the hands of a statutory authority who has

been held to possess the property on behalf of real owner.

2254. In Everest Coal Company Pvt. Ltd. Vs. State of

Bihar and others, 1978 (1) SCC 12 though in a different

context, expressing its opinion on the status/capacity of receiver

appointed by the Court, the Apex Court said, “when a court puts

receiver in possession of a property, the property comes under

court's custody, the receiver being merely an officer/agent of the

Court.” It further says that “receiver represents neither party

being an officer of the Court.”

2255. In Rajah of Venkatagiri Vs. Isakapalli Subbiah &

others (supra), the Madras High Court held, if a suit is filed for

2250

declaration of title to immovable property, Article 142 of the

Second Schedule to Act XV of 1877 would not be attracted. But

where a suit for possession is filed by a person who was earlier

in possession and was dispossessed or discontinued of

possession, it would be governed by Article 142. However, it

was further clarified where the property has been attached by a

Magistrate under Section 145, Article 142 will not be attracted

since the Magistrate cannot be regarded as having dispossessed

either parties or that has discontinued possession thereof. The

Nature of attachment by Magistrate vis-a-vis possession of the

property is explained as under :

“Under section 146, Criminal Procedure Code, the

Magistrate is bound to continue the attachment and have

statutory possession of the lands for purposes of continuing

the attachment until a competent Civil Court determines

the rights of the parties to the dispute before him or the

person entitled to the possession of the lands and he cannot

deliver the property to any of the parties or other person

without an adjudication by a Civil Court. During the

continuance of the attachment, the legal possession for

purposes of limitation will constructively be in the person

who had the title at the date of the attachment and such

title cannot be extinguished by the operation of section 28

of the Limitation Act, however, long such attachment may

continue.”

2256. The Court also held that to commence limitation or

whether a cause of action is a continuing one, the criteria would

be “whether the wrong is a continuing one” and not “whether

the right is a continuing one”. It reiterated the view that

attachment of property does not amount to either dispossession

1

2251

of owner or discontinuance of his possession.

2257. In Yeknath Vs. Bahia (supra) the Nagpur High

Court said where the property in dispute has been attached by

Magistrate under Section 146 Cr.P.C., the right to sue accrued

when the attachment was made and the limitation would begin

to run under Section 23 after the date of attachment by the

Magistrate. The Court said:

“. . . . . what led the Magistrate to take possession is

that it was either his inability to decide who was in actual

possession or his decision that neither party was in

possession. Neither of these can be said to be a wrong by

the defendant. . . . . . In the circumstances of these cases it

is the attachment by the Magistrate and not any wrongful

act of the defendants that gave rise to the right to sue and

the right accrued when the attachment was made. In this

view no fresh period of limitation began to run under S. 23

of the Limitation Act after the date of the attachment by the

Magistrate in 1908.” (page 236)

2258. In Abinash Ch. Chowdhury Vs. Tarini Charan

Chowdhury and others (supra) the Calcutta High Court said:

“In the case of Ismail Ghani Ammal Vs. Katima

Rowther, (1912) 22 MLJ 154 the Madras High Court, in

dealing with a case in which a Receiver had been

appointed prior to the institution of proceedings under S.

145, Criminal P.C., held that the possession of the Receiver

may, for the purpose of S. 145, Criminal P.C., be properly

regarded as possession on behalf of the party who should

be ultimately found by the Magistrate to be in possession

immediately before the date of his appointment, as, for the

purpose of limitation, the possession of the Receiver is held

2252

to be the possession of the party entitled to possession. . . . .

. In the case of Rajah of Venkatagiri Vs. Isakapalli

Subbiah, (1903) 26 Mad 410 it was held that an attachment

under S. 146, Criminal P.C., operated in law for purposes

of limitation, simply as a detention of custody, pending the

decision by a civil Court, on behalf of the party entitled,

and for such purposes the seisin or legal possession was,

during the attachment, in the true owner. It was observed

that:

such attachment operates in law for the purposes of

limitation simply as detention or custody of the property by

the Magistrate, who, pending the decision by a civil Court

of competent jurisdiction, holds it merely on behalf of the

party entitled, whether he be one of the actual parties to the

dispute before him or any other person. For the purposes

of limitation the seisin or legal possession will, during the

attachment, be in the true owner and the attachment by the

Magistrate will not amount to dispossession of the owner

or to his discontinuing possession.” (page 784)

In Brojendra Vs. Bharat Chandra, AIR 1916 Cal 751,

it was held that during an attachment under S. 146,

Criminal P.C., the seisin or legal possession is in the true

owner and that the attachment does not amount to either

dispossession of the owner or the discontinuance of his

possession. The learned Judges in that case relied for their

conclusion upon the decision of the Judicial Committee in

the case of Khagendra Narain Chowdhury Vs. Matangini

Debi, (1890) 17 Cal 814 in which the attachment under the

530th and 531st section of the Code of 1872 was considered

as placing the Government really in the position of stake-

2253

holders, the decision in the case of Ramaswami Vs.

Muthusamy, (1907) 30 Mad 12, to which reference has

already been made, the decision in the case of Beni Prasad

Vs. Shahjada, (1905) 32 Cal 856, in which the possession

of the Magistrate after attachment under S. 146 was held to

be one on behalf of such of the rival parties as might

establish a right to possession on their own account and

the decision of the Judicial Committee in the case of Karan

Singh Vs. Bakar Ali Khan, (1882) 5 All 1 in which the

possession of the Government in the Revenue Department

of land which had been attached by the Collector to secure

payment of revenue which has been endangered in

consequence of disputes relating thereto was considered to

be possession not adverse to the owner though the

Collector had subsequently paid over the surplus proceeds

of the estate to a stranger. Reliance also was placed in that

decision upon the principles deducible from the decisions

of the Judicial Committee in the case of Trustees and

Agency Company Vs. Short, (1888) 13 AC 798 and

Secretary of State Vs. Krishna Mani Gupta, (1902) 29 Cal

518 and the observations of Baron Parke in Smith Vs.

Lloyd, (1854) 9 Ex 562. The same view was taken of the

effect of an attachment under S. 146, Criminal P.C. In a

later decision of this Court in the case of Sarat Chandra

Maiti Vs. Bibhabati Debi, AIR 1921 Cal 584, in which it

was observed that the authority of the decision in the case

of Deonarain Vs. Webb, (1900) 28 Cal 86 in which the

plaintiff had been dispossessed from his raiyati lands and

subsequent to such dispossession there was an attachment

under S. 146, Criminal P.C., and it was held that the

2254

plaintiff was not entitled to have a fresh start of limitation

from the date of the attachment, as he had already been

dispossessed before that date, must be considered as

shaken by the decision of the Judicial Committee in the

case of Secretary of State Vs. Krishna Mani, (1902) 29

Cal 518. The intervention of public authorities for the

preservation of peace was considered as operating in the

same way as the vis major of floods and by analogy it was

held that the constructive possession of the land after such

intervention remains, if anywhere, in the true owner.”

(Page 784-785)

“The purposes of the two attachments, one under the

proviso to Cl. (4) of S. 145 and the other under S. 146,

Criminal P.C., are different, and the stakes are not the

same. In the case of the former, the attachment subsists

till the decision under S. 145, Cl. (4), that is to say, till it

is decided which party was in possession at the date of

the proceedings; in the latter case it lasts until a

competent Court has determined the rights of the parties

or the person entitled to possession. It may be that an

attachment under S. 145, Cl. (1) may terminate on the

proceedings being dropped or attachment under S. 146,

Criminal P.C., may be withdrawn when the Magistrate is

satisfied that there is no longer any likelihood of a breach

of the peace; but that does not affect the character of the

attachments. The objects of the two attachments are

obviously different. The possession in the case of the one

enures to the benefit of the party who was in possession at

the date of the proceedings and in the case of the other to

the party or to any person, either a party to the

2255

proceedings or not, who may be adjudged, on the basis of

his rights to be entitled to possession. Proceedings under

Ch. 12, Criminal P.C. are of a quasi civil character and the

Magistrate intervenes and attaches the property much on

the same lines and with a similar purpose as when a

Receiver is appointed by the Court in a civil action, in

order to prevent a scramble and to preserve the property

until the rights of the parties are ascertained. The

possession of a Receiver appointed under such

circumstances is exclusively the possession of the Court,

the property being regarded as in the custody of the law in

gremio legis for the benefit of whoever may be ultimately

determined to be entitled thereto. The object of proceedings

under S.145, Criminal P.C., being to determine which

party was in possession at the date of the proceedings and

to declare such party to be entitled to retain possession, the

possession of the Court during attachment in the course of

those proceedings should enure for the benefit of such

party in whose favour such a declaration is made. The

object of an attachment under S. 146, Criminal P.C., is to

hold the property in anticipation of an action in which the

right or title to possession is to be declared by a competent

Court and the possession of the Court during such

attachment should enure for the benefit of the party or

person in whose favour a competent Court would make

such a declaration.” (Page 785-786)

“The rightful owner may not be a party to the

action, in which case time will run against him, but not

in his favour.”

“For the foregoing reasons, in our judgment, the

2256

common manager and not the plaintiffs must be treated as

having been in possession during the attachment under S.

145, Cl. (4), Criminal P.C., and consequently the plaintiffs'

suit is barred by limitation.” (Page 786)

2259. With reference to Receiver's possession and

application of Article 144 L.A. 1908, in P. Lakshmi Reddy Vs.

L. Lakshmi Reddy, AIR 1957 SC 314 the Apex Court

considered the nature of Receiver's possession. It referred to

Woodroffe on the Law relating to Receivers (4th Edition) at page

63 stating, “The Receiver being the officer of the Court from

which he derives his appointment, his possession is exclusively

the possession of the Court, the property being regarded as in the

custody of the law, in gremio legis, for the benefit of whoever

may be ultimately determined to be entitled thereto.”

2260. The Apex Court said further in para 6 of the

judgement:

“A Receiver is an officer of Court and is not a

particular agent of any party to the suit, notwithstanding

that in law his possession is ultimately treated as

possession of the successful party on the termination of the

suit. To treat such Receiver as plaintiffs agent for the

purpose of initiating adverse possession by the plaintiff

would be to impute wrong-doing to the Court and its

officers. The doctrine of the Receiver's possession being

that of the successful party cannot, in our opinion, be

pushed to the extent of enabling a person who was initially

out of possession to claim the tacking on of Receiver's

possession to his subsequent adverse possession. The

position may conceivably be different where the defendant

in the suit was previously in adverse possession against the

2257

real owner and the Receiver has taken possession from him

and restores it back to him on the successful termination of

the suit in his favour.”

2261. In Deo Kuer Vs. Sheo Prasad (supra) AIR 1966

SC 359 the Court observed that the property in attachment under

Section 145 Cr.P.C. would mean that it is "custodia legis".

Where the property is custodia legis it would mean that it is not

in possession of any private individual and, therefore, there is no

need to seek a relief of restoration of possession in a suit filed

by the affected party but a simple suit for declaration of title

would be sufficient. In Deo Kuer (supra) the Apex Court has

further held that when the property is under attachment under

Section 145 Cr.P.C. no relief for delivery of possession need be

sought but the suit ought to be filed only for declaration of title

for the reason that the property being in custodia legis no

defendant would be in a position to deliver the same to the

plaintiff but when a declaration of title is made, the natural

consequences would follow. In para 4 of the judgement the

Apex Court held:

“In our view, in a suit for declaration of title to

property filed when it stands attached under S. 145 of the

Code, it is not necessary to ask for the further relief of

delivery of possession.”

2262. Further the Court held that the Magistrate hold

possession during the period of attachment on behalf of the

party who ultimately is found entitled for possession. The Apex

Court in Deo Kuer (Supra) followed and approved Madras

High Court's decision in K. Sundaresa Iyer Vs. Sarvajana

Sowkiabi Virdhi Nidhi Ltd., AIR 1939 Madras 853 and Privy

Council decision in Humayun Begam Vs. Shah Mohammad

2258

Khan, AIR 1943 PC 94 and Sunder Singh Mallah Singh

Sanatan Dharm High School Trust Vs. Managing Committee,

AIR 1938 PC 73 but overruled the Patna High Court's decision

in Dukham Ram Vs. Ram Nanda Singh, AIR 1961 Pat. 425.

2263. Ases Kumar Misra & others Vs. Kissori Mohan

Sarkar & others AIR 1924 Cal. 812 has been relied on to claim

that a decision of the Civil Court, if not inter parties, can be

relied on by the Magistrate to pass an order for delivery of

possession under Section 145/146 Cr.P.C. Therein, a suit was

filed for recovery of some money wherein the ownership rights

with respect to some part of the immovable property was also

considered. The Civil Court passed an order on the same issue.

Later on, the immovable property itself became subject matter

of a dispute between one of the parties in the suit and another.

The Magistrate initiated proceedings under Section 145 Cr.P.C.

And placed the property under attachment. Thereafter, relying

on the decision of the Civil Court, it passed an order under

Section 146 Cr.P.C. for delivery of possession to the party in

whose favour the Civil Court decided the issue with respect to

the ownership. It was contended that since others were not party

in earlier proceedings, the earlier judgment of the Civil Court is

not binding on them and, therefore, it would not have been

relied by the Magistrate. Rejecting this argument, the Division

Bench held that even though a Civil Court's judgment may not

be binding on the parties who were not party before the Civil

Court, but that would not prevent a Magistrate to look into that

judgment for the purpose of passing an order for delivery of

possession under Section 146 (1) Cr.P.C. This Judgment would

not apply to the case in hand inasmuch it is not a case where the

Magistrate has passed order under Section 146 (1) Cr.P.C.

2259

taking into consideration the judgment in Suit-1885 nor it can be

said that in the said judgment, the Court has determined the

issues of ownership in favour of one or the other party at all.

This aspect as to what was the issue and what has been decided

in Suit-1885, we have already dealt with in detail while

considering the issues relating to res judicata, estoppel etc. and

need not be repeated. This judgment, in our view, has no

application to any of the issues in these cases.

2264. Ellappa Naicken Vs. K.Lakshmana Naicken &

others AIR (36) 1949 Madras 71 is not an authority for what it

has been referred. With respect to the proceedings under Section

146 Cr.P.C., the judgment only says that a suit for declaration

ought to be filed within six years from the date of the order

passed under Section 146 Cr.P.C., failing which, however, the

parties are not left remedy-less for the reason that even then a

suit for recovery of profits can be filed within the period of

limitation from the date the profits are received by receiver and

while adjudicating the rights to receive profits, the Civil Court

has to decide the title also and that decision of Civil Court

would be a determination according to which the Magistrate

would have to deliver possession of the property attached by

him under Section 146 Cr.P.C. It is in respect to this kind of

decision, the learned Single Judge says that a decision on the

title by the Civil Court in a suit pertaining to recovery of profit

will be binding and will have the force of res judicata for the

purpose of Section 146 Cr.P.C. and would practically operate as

a determination of right of the successful plaintiff to the land

under attachment as well the amount in deposit. In our view,

this judgment does not help the parties in any manner in respect

to the issues in question.

2260

2265. In Jurawan Singh & Ors. Vs. Ramsarekh Singh &

Others AIR 1933 Patna 224, the concept of possession and

dispossession with reference to the proceedings under Section

145 Cr.P.C. came to be considered for the purpose of attracting

limitation. There was two sets of cases. In the first one, about

400 bighas of land remained submerged under water for about

13-14 years and on reappearance, the dispute arose with regard

to possession. Consequently, proceedings under Section 145

Cr.P.C. commenced resulting in an order dated 15th December,

1916 attaching the property under Section 146 Cr.P.C. being

unable to find which party was in actual possession of the land,

and the Collector was appointed as receiver.

2266. In the second set of case about 1000 bighas of land

was involved which was also submerged and on reappearance in

1918, Section 145 Cr.P.C. proceedings were initiated which

ultimately resulted in a final order dated 08th July, 1931

declaring 200 bighas of land in possession of defendants-

appellants while remaining 800 bighas was attached under

Section 146 Cr.P.C.

2267. In respect to the second case, the argument raised

that the suit having been filed after more than two years from

the date of order dated 8th July, 1931, hence it is barred by

limitation specially provided under Article 3 Schedule 3 of the

Bengal Tenancy Act. It was contended that the land stood

'abandoned' when it was submerged under water and on its

reappearance, possession was not taken by the tenants as their

holding. Since there was no dispossession by the landlord hence

special limitation would not apply.

2268. The High Court said that an attachment made under

Section 146 is for the purpose of preventing a breach of peace,

2261

and the attachment is to last until a competent Court has

determined the rights of the parties to the land in dispute or the

person entitled to possession thereof. When a competent Court

has determined the rights of the parties or the person entitled to

possession of the land in dispute, it is the duty of the Magistrate

to withdraw the attachment and make over possession to such

party. Any act done by the Receiver appointed under Section

146 during the period of attachment cannot and ought not to

prejudicially affect the rights of the party found by the Court to

be entitled to possession of the land in dispute. It however

agreed with a Division Bench decision of the Calcutta High

Court in Brojendra Kishore (supra) that it is a continuing

wrong under Section 23 of the Act.

2269. If limitation begins to run before the date of the

order of attachment under Section 146 Cr.P.C., it is clear that

the plaintiffs in a declaratory suit cannot have a fresh start of

limitation from the date of the subsequent attachment.

2270. In the case before the Patna High Court as a matter

of fact the Court found that there was no dispossession by the

landlord before any order of attachment under Section 145 was

passed and in these circumstances the matter was decided

holding:

"….The attached lands being jungle, sandy and waste lands

were not capable of actual possession by either party and

therefore there was no actual possession by the plaintiffs

and dispossession by the defendants after the re-

appearance of the lands. The entire 1,400 bighas

admittedly went under water between 1901 and 1903 and

the raiyats lost possession on account of the submersion,

and it is therefore contended that as there was no actual

2262

possession by the plaintiffs and dispossession by the

defendants, Article 3, Schedule 3, Bengal Tenancy Act, did

not apply."

"….I am therefore of opinion that having regard to the fact

that there was no actual possession of the raiyati holding

by the plaintiffs after re-appearance, and no actual

dispossession by the landlords in the present case, the

special limitation of two years under Article 3, Schedule 3,

Bengal Tenancy Act, did not apply in respect of the lands

claimed in Schedule 2 of the plaint, and that the period of

limitation applicable is that provided in Article 47,

Limitation Act, and as such the suit is within time."

2271. The Apex Court in Shanti Kuamr Panda Vs.

Shakuntala Devi JT 2005 (11) SC 122 has said:

"10. Possession is nine points in law. One purpose of

the enforcement of the laws is to maintain peace and order

in society. The disputes relating to property should be

settled in a civilized manner by having recourse to law and

not by taking the law in own hands by members of society.

A dispute relating to any land etc. as defined in sub-section

(2) of S. 145 having arisen, causing a likelihood of a

breach of the peace, S. 145 of the Code authorises the

Executive Magistrate to take cognizance of the dispute and

settle the same by holding an enquiry into possession as

distinguished from right to possession or title. The

proceedings under Ss. 145/146 of the Code have been held

to be quasi-civil, quasi-criminal in nature or an executive

on police action. The purpose of the provisions is to

provide a speedy and summary remedy so as to prevent a

breach of the peace by submitting the dispute to the

2263

Executive Magistrate for resolution as between the parties

disputing the question of possession over the property. The

Magistrate having taken cognizance of the dispute would

confine himself to ascertaining which of the disputing

parties was in possession by reference to the date of the

preliminary order or within two months next before the

said date, as referred to in proviso to sub-section (4) of S.

145, and maintain the status quo as to possession until the

entitlement to possession was determined by a Court,

having competence to enter into adjudication of civil

rights, which an Executive Magistrate cannot. The

Executive Magistrate would not take cognizance of the

dispute if it is referable only to ownership or right to

possession and is not over possession simpliciter; so also

the Executive Magistrate would refuse to interfere if there

is no likelihood of breach of the peace or if the likelihood

of breach of peace though existed at a previous point of

time, had ceased to exist by the time he was called upon to

pronounce the final order so far as he was concerned."

"12. What is an eviction "in due course of law"

within the meaning of sub-section (6) of S. 145 of the

Code? Does it mean a suit or proceedings directing

restoration of possession between the parties respectively

unsuccessful and successful in proceedings under S. 145 or

any order of competent Court which though not expressly

directing eviction of successful party, has the effect of

upholding the possession or entitlement to possession of the

unsuccessful party as against the said successful party. In

our opinion, which we would buttress by reasons stated

shortly hereinafter, ordinarily a party unsuccessful in

2264

proceedings under S. 145 ought to sue for recovery of

possession seeking a decree or order for restoration of

possession. However, a party though unsuccessful in

proceedings under S. 145 may still be able to successfully

establish before the competent Court that it was actually in

possession of the property and is entitled to retain the same

by making out a strong case demonstrating the finding of

the Magistrate to be apparently incorrect."

"15. It is well settled that a decision by a Criminal

Court does not bind the Civil Court while a decision by the

Civil Court binds the Criminal Court (See Sarkar on

Evidence, Fifteenth Edition, page 845). A decision given

under S. 145 of the Code has relevance and is admissible in

evidence to show:- (1) that there was a dispute relating to a

particular property; (ii) that the dispute was between the

particular parties; (iii) that such dispute led to the passing

of a preliminary order under S. 145(1) or an attachment

under S. 146(1), on the given date, and (iv) that the

Magistrate found one of the parties to be in possession or

fictional possession of the disputed property on the date of

the preliminary order. The reasoning recorded by the

Magistrate or other findings arrived at by him have no

relevance and are not admissible in evidence before the

competent Court and the competent Court is not bound by

the findings arrived at by the Magistrate even on the

question of possession through, as between the parties, the

order of the Magistrate would be evidence of possession.

The finding recorded by the Magistrate does not bind the

Court. The competent Court has jurisdiction and would be

justified in arriving at a finding inconsistent with the one

2265

arrived at by the Executive Magistrate even on the question

of possession. Sections 145 and 146 only provide for the

order of the Executive Magistrate made under any of the

two provisions being superseded by and giving way to the

order or decree of a competent Court. The effect of the

Magistrate's order is that burden is thrown on the

unsuccessful party to prove its possession or entitlement to

possession before the competent Court."

2272. In M.P. Peter Vs. State of Kerala & others JT

2009 (13) SC 1, the Apex Court after referring the above

observations in Shanti Kuamr Panda (supra) in para 29 of the

judgment observed:

"29. The correctness of some of the observations

made therein although may be open to the question, we

need not enter into said controversy at present."

2273. However, in para 30 in M.P. Peter Peter (supra),

the Court referred following extract from Shanti Kumar Panda

(supra):

(3) A decision by a Criminal Court does not bind the Civil

Court while a decision by the Civil Court binds the

Criminal Court. An order passed by the Executive

Magistrate in proceedings under Sections 145/146 of the

Code is an order by a Criminal Court and that too based

on a summary enquiry. The order is entitled to respect and

wait before the competent Court at the interlocutory stage.

At the stage of final adjudication of rights, which would be

on the evidence adduced before the Court, the order of the

Magistrate is only one out of several pieces of evidence.

(4) The Court will be loath to issue an order of interim

injunction or to order an interim arrangement inconsistent

2266

with the one made by the Executive Magistrate. However,

to say so is merely stating a rule of caution or restraint, on

exercise of discretion by Court, dictated by prudence and

regard for the urgent/emergent executive orders made

within jurisdiction by their makers; and certainly not a tab

on power of Court. The Court does have jurisdiction to

make an interim order including an order of ad interim

injunction inconsistent with the order of the Executive

Magistrate. The jurisdiction is there but the same shall be

exercised not as a rule but as an exception. Even at the

stage of passing an ad interim order the party unsuccessful

before the Executive Magistrate may on material placed

before the Court succeed in making out a strong prima

facie case demonstrating the findings of the Executive

Magistrate to be without jurisdiction, palpably wrong or

self-inconsistent in which or the like cases the Court may,

after recording its reasons and satisfaction, make an order

inconsistent with, or in departure from, the one made by

the Executive Magistrate. The order of the Court final or

interlocutory, would have the effect of declaring one of the

parties entitled to possession and evicting therefrom the

party successful before the Executive Magistrate within the

meaning of sub-section (6) of S. 145."

2274. Dilemma on the part of the plaintiffs is further writ

large from the fact that they have also claimed title to the

property in dispute based on adverse possession. Somebody, if

has taken the plea of adverse possession, presupposes that on the

date of filing the suit he continued to be in possession of the

property in dispute otherwise an adverse possession if has

discontinued for one or the other reason before maturing in title,

2267

would dispel the claim based on adverse possession. Here we

are not discussing the ingredients of “adverse possession” etc. in

detail since dealing with the issues pertaining to “adverse

possession”, we shall discuss the meaning, scope and

ingredients etc. of “adverse possession” thereunder but suffice it

to say that for the purpose of issues pertaining to limitation we

can say that if a plaintiff has sought to set up a case that he has

matured his right by virtue of adverse possession, it presupposes

that he continued to be in possession on the date of filing the

suit or matured his title after completion of prescribed period

and this completely mitigate the condition for attracting Article

142 that the cause of action has arisen due to dispossession or

discontinuance of possession of plaintiff.

2275. It is contended that no party can simultaneously

plead that either the matter is governed by Article 142 or 144 for

the reason that the ingredients of both the provisions are

different. The pleadings in one or the other manner are virtually

self destructive and that is why both the provisions cannot be

pleaded simultaneously. It is contended that the plaintiff has to

exercise his option, i.e, right to elect one or the other case and

he cannot plead both simultaneously. Article 142 is applicable

for recovery of possession of immovable property when the

plaintiff's possession of the property has been taken away i.e. he

is dispossessed or had discontinued of possession. Under Article

142 the burden of proof lies upon the plaintiffs to prove their

possession within 12 years before the suit. While Article 144 is

a residuary and is applicable for recovery of possession of

immovable property or an interest therein not specifically

provided for by the Act and in that case burden of proof lies

upon the defendants to prove their possession and expiry of 12

2268

years before the suit.

2276. Reliance is placed on Chairman and M.D.,

N.T.P.C. Ltd. (supra) where the Apex Court has held that none

can be allowed to approbate and reprobate at the same time.

Relevant paras 36 and 37 of the judgment read as follows:

"36. In Halsbury's Laws of England, 4th Edition, Vol.16

(Reissue) para 957 at page 844 it is stated:

"On the principle that a person may not approbate and

reprobate a special species of estoppel has arisen. The

principle that a person may not approbate and reprobate

express two propositions:

(1) That the person in question, having a choice between

two courses of conduct is to be treated as having made an

election from which he cannot resile.

(2) That he will be regarded, in general at any rate, as

having so elected unless he has taken a benefit under or

arising out of the course of conduct, which he has first

pursued and with which his subsequent conduct is

inconsistent."

"37. In American Jurisprudence, 2nd Edition, Volume 28,

1966, Page 677-680 it is stated:

"Estoppel by the acceptance of benefits:

Estoppel is frequently based upon the acceptance and

retention, by one having knowledge or notice of the facts,

of benefits from a transaction, contract, instrument,

regulation which he might have rejected or contested. This

doctrine is obviously a branch of the rule against assuming

inconsistent positions.

As a general principle, one who knowingly accepts the

benefits of a contract or conveyance is estopped to deny the

2269

validity or binding effect on him of such contract or

conveyance.

This rule has to be applied to do equity and must not be

applied in such a manner as to violate the principles of

right and good conscience."

2277. In order to attract Article 142, the plaintiff has to

show that either he is owner based on a valid title or that he was

in possession over the property in question but has been

dispossessed in the past in a period less than twelve years. In

case, he pleads that he is the owner but the possession was

admittedly with the defendants and such possession has not

completed twelve years therefore the ownership or the title of

the plaintiff is not extinguished, in such case it is Article 144

which will apply. The ingredients of the two are apparently

different and the pleadings have to be made differently.

Tentatively it can be said that in a given case simultaneously it

may not be possible for a plaintiff to plead a case either of

Article 142 of that of Article 144.

2278. Moreover, to attract Article 142 the person who

ascertain dispossession has to prove it since the presumption in

law is in favour of continuity of possession.

2279. In Nathoo Lal Vs. Durga Prasad AIR 1954 SC 355

it was held that in order to attract Article 142 of the Limitation

Act, it is incumbent to show that dispossession took place and

more than 12 years since then had expired. The presumption in

law being in favour of continuity of possession, the person who

assert dispossession, has to be proved.

2280. To some extent, what has been argued does not

appear to be wholly without substance. It cannot be disputed

that the question of limitation is a mixed question of law and

2270

facts. The submission of Sri P.N.Mishra and other learned

counsels is that the plaint ought to have been rejected at the

threshold being ex facie barred by time. Suffice it to mention

that it is not always correct that a plaint can be rejected on the

ground of limitation since many a times, question of limitation

is not a pure question of law but a mixed question of law and

facts. In such cases, rejection of plaint ex facie is not justified. It

is always open to the parties to raise plea of limitation and the

Court shall consider the same and decide the issue even at the

time of final hearing along with other issues.

2281. In Ramesh B. Desai and others Vs. Bipin Vadilal

Mehta and others 2006 (5) SCC 638, the Court said, "A plea of

limitation cannot be decided as an abstract principle of law

divorced from facts as in every case the starting point of

limitation has to be ascertained which is entirely a question of

fact."

2282. Considering the question as to whether a plaint can

be rejected under order 7 Rule 11 (d) C.P.C. in the absence of

proper pleadings relating to limitation, in Balasaria

Construction (P) Ltd. Vs. Hanuman Seva Trust and Ors. 2006

(5) SCC 658, it was held that it cannot not be done since the

limitation is a mixed question of law and facts. Similar is the

view expressed in Narne Rama Murthy Vs. Ravula

Somasundaram and others 2005 (6) SCC 614. The above

proposition has been followed recently in Kamlesh Babu and

others Vs. Lajpat Rai Sharma and others JT 2008 (4) SC 652

with a further rider that there are cases where the question of

limitation can be decided or determined only on a mere perusal

of the plaint and in such case even without adverting to

recording of evidence etc. the issue can be decided at the very

2271

threshold or at the later stage since Section 3(1) of the

Limitation Act bars the jurisdiction of a Court to entertain a suit

which is beyond the period of limitation. The Court relied and

referred to Lachhmi Sewak Sahu vs. Ram Rup Sahu & Ors.

AIR 1944 PC 24. On this aspect, we find a consistent view of

the Apex Court in some other cases also, i.e, Kamala and

others Vs. K.T. Eshwara Sa and others AIR 2008 SC 3174;

P.T. Munichikkanna Reddy and others Vs. Revamma and

others 2007 (6) SCC 59; C. Natrajan (supra); Panchanan

Dhara and others Monmatha Nath Maity and another 2006

(5) SCC 340.

2283. The reading of the entire plaint (Suit-4) nowhere

shows an averment that the plaintiffs were dispossessed of a

property which they already possess. The case on the contrary is

that while placing idol in the building in dispute, which was a

mosque, the same has been desecrated which has the effect of

obstructing and interfering in the right of the plaintiffs of

worship thereat.

2284. However, the relief sought by the plaintiffs (Suit-4)

is not to continue to exercise their right of worship but instead a

declaration has been sought with respect to the status of the

property in dispute that it is a "mosque". Meaning thereby the

defendants have been called upon to defend an issue about the

very status of the property in dispute. A dispute of status and

nature of the building as such has been raised and a declaration

about its status that it is a mosque has been prayed for. The

plaintiff's cause of action and relief, therefore, are quite

divergent. At several stages some statements here and there in

the plaint and replication made endeavouring to bring the suit in

question within the period of limitation. The counsel for the

2272

plaintiffs have contended that this is an assumption on the part

of the defendants that the plaintiffs are dispossessed of the

property in question and, therefore, it is this assumption which

will attract Article 142 of L.A. 1908 in this case.

2285. We, however, find no substance in the submission.

Pleadings have to be clear, specific and unambiguous. Probably

to clear the ambiguity in the pleadings, statement was made

under Order X, Rule 2 on behalf of plaintiffs (Suit-4) through

their counsel explaining that the entire premises, marked as

ABCD in the map appended to the plaint, is the disputed

premises and it is a mosque which is an Islamic structure has no

other structures except "Chabutara" called as "Ram Chabutara"

on the south-east side in the outer courtyard and therefore, it

should be declared as a mosque.

2286. The evidentiary value of the statement under Order

X, Rule 2 C.P.C. has been considered in catena of decisions.

This Court in Miss Talat Fatima Hasan Vs. His Highness

Nawab Syed Murtaza Ali Khan Sahib Bahadur and others

AIR 1997 All. 122 in para 42 has said:

"A statement of a party, its counsel or agent under

Order X, Rule 2 C.P.C. is for all practical purposes a part

of pleading and is binding on the party, who makes it or on

whose behalf it is made......"

2287. To the same effect is the decision in Balmiki Singh

Vs. Mathura Prasad & Ors. AIR 1968 All. 259.

2288. It is contended by the learned counsel for plaintiffs

(Suit-4) that though the objection regarding limitation has been

raised, but no fact has been pleaded to show as to how the case

is barred by limitation. It is, therefore, contended that the

declaration by the plaintiffs in the plaint that the cause of action

2273

is continuing one must be deemed to be admitted and the Court

is not required to look into the matter further.

2289. This submission is evidently misconceived. Section

3 of the Limitation Act imposes an obligation upon the Court to

dismiss a suit which has been filed beyond the period prescribed

in the statute. The Court cannot admit a case in the absence of

the plea of limitation raised by the defendants though the suit

was filed beyond the period prescribed in the statute. We have

already referred in this regard Maqbul Ahmad Vs. Onkar

Pratap Narain Singh, AIR 1935 PC 85. The Apex Court has

also taken the same view in Jetmull Bhojraj Vs. The

Darjeeling Himalayan Railway Co. Ltd. And others AIR 1962

SC 1879; Rama Shankar Singh & another Vs. Shyamlata

Devi & another others AIR 1970 SC 716 and Rajendra Singh

& others Vs. Santa Singh AIR 1973 SC 2537.

2290. In Manindra Land And Building Corporation Ltd.

Vs. Bhutnath Banerjee and others AIR 1964 SC 1336, it was

held that the Court has no choice in the matter and the Court is

bound to dismiss the suit which is barred by limitation. The

burden of proof in the matter of limitation lie upon the plaintiff.

It is only when the prima facie plaintiff shows that his case is

within limitation, the onus may shift upon the defendants to

prove otherwise.

2291. In District Basic Education Officer and another

Vs. Dhananjai Kumar Shukla and another (2008) 3 SCC 481,

it was held that even if no counter affidavit is filed, on the legal

issues, the Court has to apply its mind and consider the matter.

If a fact is not disputed or expressly admitted, the same in terms

of Section 56 of the Evidence Act need not be proved but that

does not mean that what constitute ultimately an issue